Rohingya Refugees
 - Question

Lord Ahmed: To ask Her Majesty’s Government what assessment they have made of the situation of Rohingya refugees and the likelihood of their safe return to Burma.

Lord Ahmad of Wimbledon: My Lords, conditions in the camps in Bangladesh have improved but remain difficult for the Rohingya community. The United Kingdom has provided £129 million of assistance since August 2017. We welcome Bangladesh’s continuing generosity in hosting the Rohingya community and its commitment to the principle of voluntariness on repatriations. I agree with the UN Refugee Agency’s assessment that conditions are not in place for safe and sustainable returns, and I assure the noble Lord that the UK will continue to press for independent monitoring by all UN agencies.

Lord Ahmed: My Lords, I thank the Minister for his reply. Will he join me in thanking the Department for International Development for providing support to the most oppressed people in the world? Is he aware that last Thursday the US House of Representatives passed a non-binding resolution, by 394 votes to one, identifying crimes against the Rohingya in Myanmar as genocide? Will Her Majesty’s Government support the indictment of the Burmese generals and civilian leaders responsible for this genocide in the International Criminal Court?

Lord Ahmad of Wimbledon: My Lords, on the earlier point, I thank the noble Lord for his remarks. It is true that we can all be proud of the role that the Department for International Development has played over many years on behalf of those people who are suffering the worst crises, including humanitarian crises and the ethnic cleansing that we have seen of the Rohingya community in Burma. On the issue of Congress, I am aware of that vote—but, as the noble Lord will know, it is a long-standing position that we regard attributing genocide as an issue for judicial authorities. However, the United Kingdom is playing a key role in gathering evidence to ensure that the perpetrators of these crimes can be brought to justice.

Lord Alton of Liverpool: My Lords, 700,000 Rohingya have now fled to Bangladesh and there are reports of villages being burned and horrific human rights violations including the burning of homes, schools and mosques; the deliberate burning of people to death inside their homes; mass rape; torture; execution without trial; the blocking of aid; and similar offences  being conducted against the Shan and the Kachin as well. So is the noble Lord, Lord Ahmed, not right to call for this, regardless of the vote in the American Congress, to be referred to the International Criminal Court? Why is the United Kingdom not laying a resolution before the Security Council calling for a global arms embargo on the Burmese Army, with targeted sanctions against Senior General Min Aung Hlaing and calling for Daw Suu, Aung San Suu Kyi, to speak out forcefully against these horrific offences?

Lord Ahmad of Wimbledon: My Lords, the noble Lord has raised various issues. First, he is quite right to point out that, as your Lordships’ House may be aware, there has not yet been a UN resolution. However, I assure him that we are speaking to all international partners, including those on the Security Council, to find a way forward on this. He will be aware that there are particular perspectives, most notably from the Chinese, which would, in our view, result in any ICC referral being blocked. We believe in the institution of the International Criminal Court and in its reforms, but any referral to it should carry full support. Looking at what has been debated and agreed in the Security Council over the last 12 months, thus far we have kept unanimity. That remains a primary objective, but I assure the noble Lord that we keep in mind the issue of all persecuted minorities—in Kachin and Shan provinces as well. We will ensure that evidence is collected and the perpetrators ultimately brought to justice in a local or international court.

Lord Dholakia: My Lords, there seems to be no prospect of the safe return of Rohingya refugees to Burma. This will remain so until we accept the full findings and recommendations of the United Nations fact-finding mission. Why are we so reluctant to do so? Does the Minister accept that two issues need to be resolved? The first and central issue is citizenship being denied to Rohingya refugees. Their citizenship is objected to by Aung San Suu Kyi, who should know better. The second is the attempt to secure referral to the International Criminal Court, which has so far stalled. Surely we cannot accept refugees being returned to Burma until those who have perpetrated such vile crimes against them are brought to justice.

Lord Ahmad of Wimbledon: I totally agree with the noble Lord. On the issue of the fact-finding mission, he will know that we were one of the co-sponsors of that resolution in March 2017, and we agree with many of the mission’s findings. On the issue of safe return, I assure the noble Lord that there was talk of an agreement having been reached between Burma and Bangladesh in November this year for returns to start. However, we are very clear that they cannot start until certain conditions are met. First and foremost, they must be voluntary. The safety and security of the refugees is paramount. We have raised that, and I met with the Information Minister of Bangladesh on Thursday and again gained that very reassurance.

Baroness Nicholson of Winterbourne: Does the Minister agree that, given the extreme unlikelihood of all the world’s 62 million refugees and IDPs being able to return home, once the United Kingdom has  left the European Union we will be in a far better position to decide who to have here? I ask particularly that some of the Rohingya refugees, as well as some others globally, should be given entry into the United Kingdom once we are in in a better position to make our own decisions.

Lord Ahmad of Wimbledon: My Lords, the history of the United Kingdom as a place which grants support to refugees from all over the world predates our membership of the European Union and will remain after Brexit. I pride myself on being in the Government of a country which over the years has stood up in support of refugees, internationally and in the UK. This continues today and will continue tomorrow.

Bishop of Winchester: My Lords, the diocese of Winchester has had a link with Burma/Myanmar since the late 19th century. This gateway state to Asia is therefore of great interest to the praying Christians of the diocese. Will the Minister confirm what action Her Majesty’s Government have taken to ensure the guaranteed security of existing internally displaced persons in Rakhine state and of any refugees who voluntarily return to Myanmar?

Lord Ahmad of Wimbledon: The right reverend Prelate raises an important issue about ensuring the security and safety of those who are in Burma. We continue to raise this directly with the civilian and military authorities. He will be aware that one of the first visits that the Foreign Secretary made on his appointment was to Burma to raise the very concerns that the right reverend Prelate highlighted.
On the safe return of refugees, I made it clear in answer to the previous question that the United Kingdom stands by the Rohingya community and supports their needs in Bangladesh. They should not return until we can guarantee their safety and security—and, above all, their return should be voluntary.

Poverty in the United Kingdom
 - Question

Baroness Lister of Burtersett: To ask Her Majesty’s Government what assessment they have made of the statement by the United Nations Special Rapporteur on extreme poverty and human rights, published on 16 November, following his visit to the United Kingdom.

Baroness Buscombe: The Government will consider the special rapporteur’s interim findings carefully. Although they disagree with his conclusions, the Government note that the report welcomes the simplification of the benefits system through universal credit and the recent Budget announcements to help tackle in-work poverty. Compared with 2010, income equality has fallen, the number of children in workless households is at a record low and 1 million fewer people are in absolute poverty, including 300,000 children.

Baroness Lister of Burtersett: The rapporteur held up a shaming mirror to poverty in our country, reinforced today by teachers’ warning of the increasingly devastating impact on their pupils. The Government’s response demonstrated their state of denial and indifference towards the impact of their policies that he criticised. Instead of constantly hiding behind cherry-picked statistics, as they have done today, why do they not listen and learn, go out and talk to people in poverty, as the rapporteur did, and end their social security and other policies that, in his words, are inflicting great and unnecessary misery?

Baroness Buscombe: My Lords, I am disappointed that the noble Baroness thinks that the Government are not listening. Only last week, she heard directly from front-line staff at the Department for Work and Pensions—I am grateful to her for coming to the department—about the vital work they do 24/7 to ensure that claimants receive the right support. In turn, I listened to the special rapporteur on Radio 4 say that people receive no funds for between five and 12 weeks when they enrol on to universal credit. That is just plain wrong and, frankly, undermines the credibility of this report.

Lord Bird: My Lords, will the Government supply us with a plan for how they are going to rescue that wonderful thing, which is that work gives social mobility and social opportunity, at a time when it is obvious that in-work poverty is increasing at a greater rate than out-of-work poverty?

Baroness Buscombe: My Lords, I greatly support what the noble Lord has always said—we believe in giving people a hand up, rather than a handout, which is about empowering people and giving them the right support. Each universal credit claimant has a caseworker and a work coach who gives them the right support in their family or personal surroundings and then, through little steps at a time, helps and encourages them into work to support them, their family and their children. They are empowered, given confidence and lifted out of poverty.

Lord Fink: My Lords, I had the pleasure—if you can call it that—of attending the APPG at which the special rapporteur met with many Members of Parliament. I was shocked, particularly by his statement that the Government do not listen. I visited a jobcentre and got a slightly different impression. Can the Minister give some examples of cases where the Government have listened?

Baroness Buscombe: My Lords, the great thing about the universal credit system is that it is being built in-house at the Department for Work and Pensions. It is more agile, and constant changes and improvements can be made, based on what we are learning from our work coaches and caseworkers. We have made hundreds of changes to the system already. We are talking to 80 stakeholders who will work—not just talk— with us to co-design the system for managed migration. We will spend seven months with those 80 stakeholders  before we even begin to manage-migrate people on to universal credit. We know that the outcomes for these people will be better and will empower their lives.

Lord McNicol of West Kilbride: There is so much in this report that one could ask about, but on page 17 it gives a devastating indictment of government policy:
“In-work poverty is increasingly common and almost 60% of those in poverty … are in families where someone works”.
But that is not the worst of it. It continues:
“There are 2.8 million people living in poverty in families where all adults in the household work”.
How can this be and what are the Government going to do about it?

Baroness Buscombe: Let me give the noble Lord an example: a couple with three children have to work only 24 hours per week between them—say, 12 hours each—to be in receipt of benefits equivalent to a salary of £35,000 per year plus housing support. Does the noble Lord think that is unfair?

Baroness Watkins of Tavistock: My Lords, I was delighted to hear that it is fairly simple to change the structure of universal credit. How quickly will the Government ensure that split payments are available for people who are potentially in a situation of financial abuse?

Baroness Buscombe: My Lords, we do not need to change the system. Split payments are already available to those in need of them and who ask for them. We are talking to different stakeholders. The noble Baroness might have heard that only a few days ago, I spoke to Refuge and Women’s Aid about how this might work and whether split payments are the panacea—we do not believe they are—in supporting people who are suffering from domestic abuse. We are looking at a number of other ways that we can better support people, rather than just focusing on split payments.

Occupied Palestinian Territories
 - Question

Baroness Tonge: To ask Her Majesty’s Government what guidance they provide to United Kingdom companies who wish to trade with companies based in Israeli settlements in the Occupied Palestinian Territories.

Baroness Manzoor: My Lords, a company’s decision to trade with businesses based in Israeli settlements is primarily commercial. When considering activities in the region, the Government urge British businesses to consider the illegal nature of Israeli settlements under international law. We also encourage British businesses to take account of our Overseas Business Risk online guidance, which provides comprehensive information on the security and political risks of trading in the region.

Baroness Tonge: I thank the Minister for that reply and for talking about international law. Is she aware that I table Questions every week concerning the actions of the Israeli Government in Palestine, putting on record the relentless expansion of those settlements and the appalling behaviour of the settlers, including the demolition of Palestinian property, the destruction of their farmland, the denial of their fishing rights and the theft of their water? Does she realise that I have asked Questions about the imprisonment of Palestinian children and the maiming and killing of others? This is not to forget the blockade of Gaza, which the United Nations has said will be uninhabitable by 2020. Does she agree that these are all examples of Israel breaking international law, human rights law and the Fourth Geneva Convention? The Government have admitted this in the Answers that I receive, which I have here. When will our Government stop talking and writing Answers to Questions and take action  to stop Israel’s illegal activities, as they do when other countries misbehave? Do we have to wait another 70 years?

Baroness Manzoor: My Lords, I am aware of the noble Baroness’s interest in this area and of the many Written Questions that she has laid down. To restate what has been outlined on numerous occasions, the UK’s position on the settlements is clear. They are illegal under international law, present an obstacle to peace and threaten the physical viability of the two-state solution. That is why we supported UN Security Council Resolution 2334, regularly raise our grave concerns on this issue with the Government of Israel and urge them to reverse their policy on settlement expansion.

Baroness Redfern: My Lords, while consumers undoubtedly have the right to know the origin of the goods they buy, does the Minister agree that it sets a dangerous precedent to encourage consumers to determine their purchases on the ethnicity or nationality of the producer?

Baroness Manzoor: I thank my noble friend for that question. We understand the concerns of people who do not wish to purchase goods exported from Israeli settlements in the Occupied Palestinian Territories. We also welcome the European Commission’s decision in November 2015 to issue indication of origin guidelines for products produced in the Israeli settlements. It is up to British retailers who stock settlement produce to voluntarily adopt the labelling policy recommended by Defra.

Lord Turnberg: Is the Minister aware that some 50,000 Palestinians work for Israeli companies in the West Bank and that Israeli trade unions ensure that the Palestinians are paid at exactly the same rate as the Israelis for the same jobs and receive the same benefits? I can do no better than quote Nabil Basherat, a Palestinian who said:
“The BDS movement has threatened my job security and livelihood … and damaged the livelihoods of hundreds … of factory workers”.
Does the Minister agree that the BDS movement damages Palestinians much more than it does Israel?

Baroness Manzoor: My Lords, I agree that boycotts of any kind are damaging for both Palestinians and Israelis. The UK strongly opposes boycotts of Israel, which divide people and reduce understanding, but, as I said, that is why the UK, along with many businesses and institutions, operates a policy of differentiation in relation to Israeli borders. It is quite right that we take the stance that there are no boycotts in these areas because they damage the economy for both sides.

Lord Pickles: My Lords—

Baroness Sheehan: My Lords—

Earl Howe: My Lords, it is the turn of the Liberal Democrats.

Baroness Sheehan: Does the Minister agree that British companies must ensure that none of their products is used in the demolition of Palestinian homes and properties in the Occupied Territories? In her response, will she address in particular the use of JCB bulldozers in the flattening of Palestinian homes and schools?

Baroness Manzoor: I have already made known our stance on the boycotting of goods. The UK Government have had discussions with JCB on a range of subjects. Where a company decides to trade is ultimately a decision for each company to reach, taking account of the legal and regulatory environment as well as international human rights law. The British Government will continue to encourage and foster respect for human rights among UK businesses.

Lord Pickles: My Lords, surely the point made by the noble Lord opposite is pursuant: unemployment and poverty further extremism. Surely it makes sense to spread prosperity given that 10% of the working population in the West Bank is employed within these settlements. Given that the Oslo accords envisage land swaps, surely it makes sense for peace to spread prosperity and give people a chance to get out of the hands of the men of blood.

Baroness Manzoor: I entirely agree with my noble friend.

Lord Collins of Highbury: My Lords, the opportunity is there. If you had listened to the radio this morning, you would have heard young Palestinians and Israelis desiring the same thing: the opportunity to prosper and use their skills. What are the Government doing to ensure we have two communities working together and that we end up with a two-state solution, in which both communities can prosper?

Baroness Manzoor: As the noble Lord is aware, the UK Government support a two-state solution. As I have said, the UK is a close friend of Israel and we enjoy excellent bilateral relationships. The British Government helped to establish the UK Israel Tech Hub, a non-profit organisation based in Tel Aviv and   London, to help British companies looking for cutting-edge innovation and Israeli start-ups seeking to go through the UK. This kind of innovation is important to help individuals living in both Israel and Palestine, and to ensure we have good economic prosperity in the region.

Asylum Seekers: Removal
 - Question

Lord Roberts of Llandudno: To ask Her Majesty’s Government whether they plan to halt the removal of failed asylum seekers to countries to which the Foreign and Commonwealth Office advise against all travel for British citizens; and if not, why not.

Baroness Williams of Trafford: My Lords, the Foreign and Commonwealth Office’s travel advice to British nationals is not the correct legal test to determine whether a person qualifies for international protection or whether to remove a foreign national with no right to remain in the UK.

Lord Roberts of Llandudno: I am delighted to wish the Minister a happy Christmas. I only ask her: when I will be able to do that to those who have indefinite detention in the UK under the present immigration law? That is my first question. My second question is: when are we going to end deportation to Congo, Afghanistan and Somalia of those who have come from there? Our people are not encouraged to go there at all; they are advised not to go there, and yet we keep on deporting people. We have deported 700 to Afghanistan, nearly 100 to Somalia and many more to Congo in the last couple of years. Is it not time the Minister stopped trying to defend our humanitarian policies, when all they are doing is sending people into war zones where many face the death penalty?

Baroness Williams of Trafford: My Lords, that is a gross exaggeration of the fact. The noble Lord conflates two things, which are the Foreign and Commonwealth Office’s advice to people travelling for holidays and other reasons and our obligations under the 1951 convention and the European Convention on Human Rights. He asks about indefinite detention. There is no indefinite detention. Most cases are sorted out within four months. As for people being deported, the FCO does not advise against travel to the whole of the countries the noble Lord mentions—Congo, Somalia and Afghanistan. It only advises against travel to parts of those countries. Also, when we send people back who have no legal right to be here, we do so with the humanitarian considerations that I have outlined in mind.

Baroness Smith of Basildon: My Lords, perhaps I may press the noble Baroness further on her comment about humanitarian considerations. How is an assessment of individual safety undertaken if someone is being removed to another country? I refer in particular to their political activities, their gender or their sexual  orientation. When someone is returned to another country, what follow-up is undertaken to ensure that they are indeed safe?

Baroness Williams of Trafford: As I said to the noble Lord, the UK bases its decisions on two conventions, the 1951 convention and the European Convention on Human Rights. If, for example, an LGBT person was to be sent back to a country or to an area in a country where they would be persecuted for their sexuality, we would not send them back.

Baroness Lister of Burtersett: My Lords, how does the Minister define the word “indefinite”? In my dictionary, it means that there is no fixed time limit. We are unusual in this country in having no fixed time limit for detention. It does not mean that people are held in detention for ever, as she seemed to imply in her response to the noble Lord, Lord Roberts.

Baroness Williams of Trafford: People are not held in detention for ever. As I said to the noble Lord, the vast majority of cases are determined within four months of someone being held in detention. I do not know of anyone who has been detained indefinitely.

Earl of Listowel: My Lords, do not these questions highlight the extremely sensitive judgments that caseworkers in her department have to make? Would she consider arranging for Members of your Lordships’ House to visit caseworkers to hear from them about their experience, how well they are supported and how much time they are given to make these very important and delicate decisions?

Baroness Williams of Trafford: I totally agree with the noble Earl that these decisions are incredibly sensitive, in particular when it comes to the things mentioned by the noble Baroness, Lady Smith, such as political activities, sexuality and even religion, which has been mentioned many times in this House. I will be happy to meet the noble Earl. I do not know if I will be able to arrange for him to visit caseworkers, but I will be happy to outline for him the framework in which we make decisions.

Baroness Hamwee: My Lords, is the Minister confident that the Home Office’s country policy and information notes are always accurate and reliable? I understand that information is taken from a number of sources and that that can include newspapers from the country of origin. However, they may be countries where the regime interferes with press freedom.

Baroness Williams of Trafford: I can assure the noble Baroness that we are mindful of our human rights obligations. Our caseworking decisions go through three lines of scrutiny, and over the past few months we have indeed improved the scrutiny and decision-making processes. I am confident that the system we now have in place is far better and more humane than perhaps is the case with some of the criticisms that have been levelled at the Home Office in the past. The Windrush episode has reminded us carefully about how we should treat people who come to this country.

Baroness Smith of Basildon: My Lords, I apologise for coming back to the noble Baroness, but this is a point for clarification. I do not have a dictionary to hand, but I think that she has confused the word “indefinite” with “for ever”. All the word “indefinite” means is that there is no time limit. Does that mean that she is now willing to set a time limit so that detention would not be indefinite?

Baroness Williams of Trafford: The word “indefinite” means for all time.

No!

Baroness Williams of Trafford: It is not defined by time. What I would say is that we endeavour to determine applications as quickly as possible and we would certainly not want anyone to be detained indefinitely on our estate.

Privileges and Conduct Committee
 - Motion to Agree

Moved by The Senior Deputy Speaker
That the further Report from the Select Committee on the conduct of Lord Lester of Herne Hill (3rd Report, HL Paper 252) be agreed to.

Lord McFall of Alcluith: My Lords, Lord Lester resigned as a Member of the House on Wednesday last week, a few hours before this report was published. As a result, Lord Lester is no longer a Member of the House and the recommendation for his suspension is unnecessary. Nevertheless, the report before us today is an important part of the process. It sets out several key points of principle which the House is invited to endorse. I urge the House to agree the report, both to deliver justice to the complainant, Jasvinder Sanghera, and to give confidence to other possible complainants and respondents that we have a robust but fair process in place for investigating allegations. That point is key. Since the debate on 15 November, there have been comments in the media, and by members of the public, suggesting a loss of confidence in our ability to hold our Members to account. We must work to regain that confidence today.
On 15 November, the House debated the committee’s original report on the conduct of Lord Lester. During that debate, a number of criticisms were made of  the House’s procedure, and of the commissioner’s investigation. These criticisms relate to the need to ensure that investigation is fair and provides natural justice for both the complainant and the Member; whether such investigations should involve cross-examination; the need for the evidence to be robustly tested; the standard of proof required for the commissioner to reach her finding; and the question of legal representation. At the end of that debate, the  House voted to remit the original report to the Privileges and Conduct Committee on the grounds that the commissioner had,
“failed to comply with paragraph 21 of the Code of Conduct which required her to act in accordance with the principles of natural justice and fairness”.—[Official Report, 15/11/18; col.  1995.]
The House asked us to think again, and we have taken great care to reflect on the arguments made in the debate. In doing so, we have drawn on not only the considerable legal and investigatory experience of individual committee members but expert input from Dr Helen Mott, a specialist in understanding the psychology of the perpetration and experience of sexual harassment, research from the Library of the House, and the policies and practices of other parliaments and professional organisations in dealing with such cases. We have also considered further submissions from both Lord Lester and the complainant, Jasvinder Sanghera, which are published with our latest report.
Our report before the House today robustly and fully addresses each of the criticisms made in the previous debate. It reaffirms the recommendations in our original report that Lord Lester,
“breached paragraph 8(b) of the Code of Conduct by failing to act on his personal honour—and specifically, that in the course of his Parliamentary duties, he had sexually harassed a member of the public and offered her corrupt inducements to sleep with him”.
It restates our unanimous support for the commissioner, who conducted her investigation,
“to the highest standards of fairness and rigour”.
She did so in accordance with a process set out in the Code of Conduct, which each of us signs at the start of each Parliament. That afforded Lord Lester every chance to put his case across and question the evidence against him.
I do not intend to set out those parts of the report which deal with factual questions about the detail of the investigation. They speak for themselves, and I believe the House has already gone further than it should in reopening the commissioner’s inquiry. However, I wish to summarise our response to the points made in the debate about the fairness of the processes. The report shows clearly that it is best practice in complaints of this nature to follow an inquisitorial process, with no cross-examination. We are not just heeding the advice of experts, such as Dr Helen Mott; we are also absolutely in line with the practice of the bodies  which regulate the conduct of Ministers, judges, and parliamentarians in similar legislatures around the United Kingdom and beyond.
Our system works because the commissioner interrogates the evidence, particularly that of the complainant and the respondent, and gives all parties the right to challenge the evidence at each stage. This is an internal disciplinary process, not a judicial one. We simply do not accept that cross-examination, whether conducted by a QC advising the commissioner or anybody else, would be appropriate. Indeed, it would put us out of line with most comparable organisations and the advice received.
We also hold firm in our belief that the balance of probabilities, calibrated according to the seriousness of the accusation, is the right standard of proof for a process that is neither criminal nor civil but determines political rights, as the European Court of Human Rights ruled just a few years ago. Again, the standard of evidence we used is the same as that used by comparable institutions around the country.
The report before the House makes clear the committee’s concern that many of the participants in the previous debate on 15 November were not fully aware of the care and professionalism of those charged with operating our scheme, which led to the House undermining the processes and the code that were also put in place with care. These processes were designed to be independent, transparent and credible in this House and beyond. In the new year, we will put forward reforms to them to address explicitly allegations of bullying, harassment and sexual conduct. We will do so not because we believe that the current system is unfair to Members—it is not—but because we need to provide better support for complainants. Some Members have suggested that we will soon scrap our processes because we do not think that they are fair to Members, which is absolutely not the case. We will bring amendments forward because, as things stand, potential complainants may be understandably daunted about exposing themselves to the glare of the media spotlight or being the subject of debate in Parliament, especially in the light of our debate on 15 November.
The House now needs to take the final decision in this case to provide resolution for the complainant, affirm our confidence in the process and demonstrate our support for the Commissioner for Standards. In her report, the commissioner made it clear that she respected both Lord Lester and the complainant as people with impeccable reputations. We should affirm the commissioner the same respect.
I end by encouraging all Members of the House who may intend to speak to the Motion to help ensure that this House maintains its respect for the complainant in this case. The debate on 15 November strayed inappropriately beyond points about the process into implied and explicit criticism of the complainant. Reputation was invoked positively 15 times to describe Lord Lester; it was not invoked once to describe the complainant. Criticism of the Commissioner for Standards was also made without any apparent acknowledgement of either the procedures drawn up by the House with which she was bound to comply or the fact that she is unable to respond.
As I have said, our role today is to bring resolution to this case, but we also have a wider role to reassure: first, this House; secondly, its staff members—74 of whom wrote to me to express serious concerns about the debate on 15 November—and thirdly, the Commissioner for Standards and any potential complainants that we will investigate any complaints we receive with fairness, justice and integrity, and in line with best practice. That is what happened in this case and that is what we will continue to do. I beg  to move.

Lord Pannick: My Lords, I declare my interests: I have been a friend and colleague of Lord Lester for many years. I assisted him during the disciplinary process, although I was not allowed to speak on his behalf. On 15 November, I moved the amendment that the Commissioner for Standards had failed to comply with paragraph 21 of the Code of Conduct because the process was not fair or in accordance with natural justice, which the House approved by 101 votes to 78. I have not tabled an amendment today because, as the Senior Deputy Speaker mentioned, Lord Lester has resigned, but I want to make three points.
First, I think it is a matter of regret that the committee did not accept the view expressed by the House on 15 November. We had a three-hour debate and views were expressed on both sides of this difficult issue. I expected the committee to move forward with an approach that accepted the view of the House, rather than contradicting it. When we engage in parliamentary ping-pong, it is with the House of Commons, not with ourselves—not with a committee of this House. It is regrettable that the committee did not accept the view of this House.
Secondly, although the committee has satisfied itself that the procedures in this case were fair and in accordance with natural justice, I can tell the House that that is not the view of a substantial number of Members, who have expressed that view to me. From my discussions with senior lawyers and judges outside the House, I can also tell the House that that community’s overwhelming view is that, but for parliamentary privilege, this report would not withstand challenge in a court of law. That is for all or some of the reasons set out in the opinion of David Perry QC and Rosemary Davidson attached to the original report of the committee; I agree with the Senior Deputy Speaker that it is unnecessary and inappropriate to go into that today.
The courts would not find what is said in paragraph 15 of the second report from the committee very persuasive. It relies on a decision made by Lord Denning in 1952, but the standards of disciplinary justice and administrative law have moved on in the last 66 years. The courts would not find the arguments summarised by the Senior Deputy Speaker—that this is an internal disciplinary matter, where we follow the same procedures as other parliamentary assemblies—very persuasive. This is a matter where an individual’s reputation has been destroyed by reference to allegations of what is said to have occurred over 11 years ago. That requires the highest standards of fairness in the procedures. That point was made by the Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. I agree with what his committee said at paragraph 280 of its report, that disciplinary proceedings in Parliament, whether against Members or non-Members, should be brought into line with what were described as “contemporary standards of fairness”. It said at paragraph 281 that it was “essential” that there should be,
“safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies”.
For the avoidance of any doubt, I emphasise that I am not saying, and I have never said, that the House should believe Lord Lester rather than Ms Sanghera. I do not know who is telling the truth about this matter.  I am not naive. I recognise that otherwise respectable men do very odd things in relation to sex. I have constantly argued that the only fair and effective way to determine who is telling the truth is to follow the procedures, which include cross-examination, which are accepted in courts of law and other disciplinary tribunals. I recognise of course that the process must be fair to the complainant as well as to the person accused, but there is no inconsistency in believing, as I do, both that sexual harassment and abuse of power are serious wrongs that should be properly investigated and, when proved, should be punished, and that allegations of this nature, like all other allegations of serious misconduct, must be addressed by a fair and rigorous process. That is not disrespectful to complainants or—to answer the Senior Deputy Speaker—damaging to the reputation of this House. Indeed, if anything is damaging to the reputation of this House it is not to adopt in relation to these matters procedures that withstand serious scrutiny.
The Senior Deputy Speaker also suggested that it is unfair to criticise the commissioner because she cannot answer back. With great respect, that is wrong in principle and in fact. It is wrong in principle because in any other public context a decision can be challenged in court. The commissioner cannot be immune from reasoned criticism, especially when paragraph 21 requires her to act fairly. It is wrong in fact because the commissioner did answer back. She responded to the points made by Lord Lester to the Privileges and Conduct Committee.
My third and final point is that the committee should take a hard look at our procedures for the future. Those procedures ought to implement the recommendations of the Nicholls committee in 1999, particularly those relating to cross-examination and the right to legal representation. I note that in Written Answer HL 2916 on 16 November 2017 the Senior Deputy Speaker said in relation to complaints of sexual assault and sexual harassment:
“The procedures and processes for investigating complaints made under the Code were not designed with complaints of this nature in mind and this is something … the Committee for Privileges and Conduct will need to consider”.
This case has illustrated that the noble Lord was correct in that statement. The procedures are not designed to address a complaint of this nature, and careful consideration is now required as to what amendments to introduce in the light of this unhappy episode. I say “unhappy” because it has been a painful experience of course for Ms Sanghera and for Lord Lester, but also for many noble Lords, including myself and, I am sure, the members of the committee. I have much regretted taking a different view on this issue from many noble Lords who I much respect.
In her report to the House of Commons on the bullying and harassment of staff, published on 15 October 2018, Dame Laura Cox advised that the disciplinary procedures of Parliament should be,
“an entirely independent process, in which members of Parliament will play no part”.
I suggest that the unhappy experience in the case of Lord Lester confirms that in future we should follow that advice in relation to our disciplinary procedures,  certainly in relation to complaints of this nature. There should be an appeal from the Commissioner for Standards not to one of our committees but to an independent appeal body composed of retired judges and distinguished lay people, and the House should have no role other than to implement the decision of that body. Independence—and the appearance of independence—and the confidence which this House needs to instil in complainants and in the wider public, so require. We cannot continue with a system in which the Privileges and Conduct Committee passes judgment on a member of this House, this House then debates the matter, and the committee and this House then continue to debate the matter until the committee gets its way.

Baroness Evans of Bowes Park: My Lords, I did not speak during the debate on 15 November, nor did the leaders of the other main political groups, despite all of us being members of the Privileges and Conduct Committee who unanimously supported its conclusions. We felt then, as now, that whether or not to endorse the committee’s report is not a party-political decision but a House decision. However, as Leader of this House, I feel that today I should speak briefly.
As the Senior Deputy Speaker has said, to an extent the recommendations of the committee’s report have been overtaken by Lord Lester’s decision to retire from the House last Wednesday. But it remains important for us to come to a conclusion on the Motion before the House in the name of the noble Lord, Lord McFall. For my part, I fully support it. I understand that the noble Lord, Lord Newby, is not intending to speak today, but he has asked me to make it clear that the report has his full support too.
I and my fellow members of the Privileges and Conduct Committee believe that the commissioner carefully and methodically followed the procedures set out for her by our Code of Conduct, which I am confident comply with the procedures of natural justice and fairness. Our commissioner is both impartial and independent. She sought and received instruction from the sub-committee in the way she approached the investigation. She ensured that Lord Lester was aware of all the points made by the complainant, and had time to respond to them, and she carefully evaluated all the evidence and explained why she reached her conclusions. A great deal of work went into the investigation of the complaint and into ensuring both parties were given a fair opportunity to comment, and that is only right: two people’s reputations were at stake.
During the debate on 15 November, much was said about the process followed by the commissioner not being fair, because it did not provide for cross-examination, as the noble Lord, Lord Pannick, has repeated. The absence of cross-examination does not mean that the process followed was unfair. Our code provides for an inquisitorial rather than an adversarial system to determine breaches. What is necessary—and what our code provides—is an impartial adjudicator who takes full statements from all parties, gives each party notice  of the case made by the others, gives all parties the  opportunity to respond and carefully reaches decisions by thorough testing and evaluation of all available evidence. That is what our commissioner did.
As a House, we should show that we support the processes that we ourselves have put in place and that we are capable of regulating ourselves. I am sure that I am not alone in being very concerned at the letter sent by 74 well-esteemed staff of this House expressing their disappointment in the outcome of our previous debate. As the noble Lord, Lord Pannick, said, this has not been a happy experience for any of us, but I truly hope that following our further debate today, noble Lords will support the report of the committee.

Baroness Kennedy of The Shaws: My Lords,  I was not present at the previous debate. Ironically, I was in India speaking to a gathering of senior judges about the failure of justice systems to deliver justice for women and the underlying problems, sometimes with the law but more often with attitudes, that persist in our societies to the detriment of women.
Had I been here, I would not have voted. I would have recused myself because of my friendship with Anthony Lester. I have known him since I was a young barrister. I have huge admiration for him, and my fondness for him and his family is considerable, but we do not sit in judgment in cases involving a friend or a colleague. No juror would sit in a case where a friend was in the dock; no judge would sit in such a case. That is because friendships colour our judgment. We do not want to think ill of a friend. We see their pain and feel their humiliation. We hear their side of the story and want to believe it. That is in the nature of friendship; we are partisan.
That was why we created in this House an independent commissioner. It was because we recognised that the risks of partisanship were great. We recognised that institutions often protect their own, as we had seen the scandals around the Catholic Church, the Anglican Church, the BBC, the police and different aspects of the establishment. Reflecting on all that, we created the current rules.
I ask the same question as the Senior Deputy Speaker: when the previous debate took place, who was in the House to make the case for the complainant, to speak as her friends and to speak of her character and achievements? That was why, when I read the Hansard of the debate, I was covered in gloom: it was an ill judged and misconceived debate. Although it was presented as being about process, the noble Lord, Lord Pannick, and others expressed views that implied they found such an accusation difficult to believe of their friend. That is how we all feel about our friends. The debate was presented as being about process, but it was not about justice.
All the tropes that imply that women are somehow not be to be relied on were presented to this House; for example, about delay. We have learned that delay is not a reason for not believing somebody, especially when they have experienced some transgression of a sexual kind. Things were said about writing something nice in a book about somebody who might have done something inappropriate to you, but probably every woman in this House will tell you how you get on with  business after somebody has behaved inappropriately and try to normalise it so that your relationships can continue, especially if your promotion, your Bill, which you are trying to get through Parliament, or your pupillage might rely on the good will of the person who has crossed the line.
I want to remind the House of the terrible folly that has blighted this distressing business in the way that it has been discussed in the media and in this House: the confusion between criminal trial rules and disciplinary processes. This is not a criminal process—I want to emphasise that to many of the older lawyers in this House who do not seem to have kept up with the times and the disappointment that women feel about how legal processes fail them. This is a disciplinary process. Talk of proof beyond reasonable doubt, rigorous cross-examination and the need for counsel is wholly inappropriate.
Let us remember why: we are here dealing with an imbalance of power. That is the basis of the complaint. Women are complaining that their working lives and professional interactions are blighted by sexual harassment. There will be few women in this House who have not experienced it at some point in their careers. Many of us just learned to brush it off and get on with things but the young do not accept that any more; they want proper processes and they do not want it to be dealt with in the way that has been described by many of our older lawyers. Young women will not come forward to make complaints about powerful men if they are going to be subjected to Old Bailey-style quizzing in the presence of the very Lord they are complaining about.
Let us imagine that it is a young librarian in this House who has been groped by a Peer. Is she really expected to face him or his well-heeled lawyer? How do we create equality of arms when we have a Lord able to secure the professional services of a top QC and the young librarian can afford no such grandeur? Do we find some low-level lawyer and pay him or her out of the public purse when we are cutting legal aid so much to the bone that most people are having difficulty finding representation? Could we justify it? It was for all these reasons that Members of this House devised a system in keeping with most disciplinary procedures, using the inquisitorial method, not the traditional adversarial method. That means an independent assessor, arbitrator or commissioner investigating the complaint, sensitively testing its veracity, applying the same careful, probing attention to the account of the person complained of and then allowing each the opportunity to respond to the account of the other. The commissioner then reaches a conclusion on whether the complaint has probity.
I have sat in that role on a number of occasions. She has the advantage over any of us in that she has heard the live accounts of both parties. We invented this process without complaint at the time. I have no doubt that it could be improved and, as we go forward, I think it should be. Because of my own experience in these cases, sitting as the commissioner did, I suggest that it is better to sit with another assessor, as I usually do. I have always felt that I benefited from the help of others in evaluating credibility. The commissioner in this case has been subjected to wholly unjust criticism.  She is a very experienced solicitor and we chose her carefully after a competitive process. She has dealt, in her 40 years’ experience, day in, day out, with the stuff of humankind, sitting as a judge in mental health matters. She is not an acquisitions and mergers lawyer, a commercial contracts lawyer, or someone dealing with fine points of law in the Supreme Court, but she has dealt, day in, day out, with the stuff of human frailty—human falls from grace and issues of dishonesty and honesty. We burdened her with the responsibility of judgment on our behalf and she deserves our respect, rather than what she was treated to.
I shall mention one area where I think she may have been wrong in law. She took the view that the allegations stood or fell together. While she may have felt handicapped by Lord Lester’s position that all the matters were fabricated, it was quite possible, for example, that there was inappropriate conduct and an unwelcome sexual pass but that the business of having a discussion about coming into this House, perhaps sitting on the Cross Benches—a discussion that many of us might have had with talented persons we thought might  have contributed to this House—might have been misunderstood. The two may have become conflated, so to have felt that the allegations all stood or fell together seems to me a mistake. Evidence is not a seamless role: you can be absolutely truthful and right about one thing and mistaken about something else. The Privileges Committee, however, agreed with the commissioner’s decision and this House will have to make a decision too.
I suggest to the House that those who are friends of Lord Lester, like me, should not be voting. I will not vote. It would not be appropriate: I am conflicted between my friendship with Lord Lester and my desire to see greater justice for women. I believe that we still have not got the system for women right.
Before I finish, I want to say that I think the suspension of four years was too long, but that boat has sailed now that Lord Lester has resigned.

Lord Pannick: As a matter of information, it is not my intention to call a vote today.

Baroness Kennedy of The Shaws: That is a source of relief to many of us. It would have been very inappropriate, as it was on the last occasion.
I feel very sad about this whole business. I am sad for the complainant. I am sad that the commissioner has had a tough time. I am sad for Lord Lester, his wife and his family. I want us to make a pledge to behave better. As men and women, we are trying to remake our world. We want an equal society. We will achieve that only when there is mutual respect between men and women. We can only do that together, as men and women. This House should see that we do that as we go forward. These processes have to be good enough for the job.

Baroness Hussein-Ece: My Lords—

Baroness D'Souza: My Lords—

Lord Taylor of Holbeach: My Lords, it is the Lib Dems’ turn to speak.

Baroness Hussein-Ece: I am grateful. I was present at the debate on 15 November. It was quite by accident—we had all been told that no Division of the House was intended. It was a Thursday afternoon, so Members of your Lordships’ House were leaving in numbers to catch trains and attend other commitments. The numbers were dwindling as the long speeches went on. However, I stayed to listen, because I felt increasingly dismayed by the tone and the imbalance of the debate that was unfolding. I thought it was no longer your Lordships’ House, where we debate matters of public interest, but that it had morphed into a court of law.
I listened to successive eminent QCs and other lawyers—people I respect enormously—stand up and say for how many years they had known Lord Lester. Collectively, those who spoke had probably known him for over 150 years. Someone said 40 years, another said 30, and another said that their families went on holidays together. I thought to myself that they would surely recuse themselves and not take part if there were a vote because, as the noble Baroness, Lady Kennedy, said, they had a bit of an interest.
Before coming to your Lordships’ House, I served as a councillor in two London boroughs for a total of 16 years. In the code of conduct, according to the Nolan principles, it would be quite improper for any councillor to take part in a debate or vote if they had an interest. If it involved a member of your family or a close friend, you would recuse yourself. I chaired the overview and scrutiny committee for years. I would not have tolerated anyone taking part in a debate such as we witnessed on 15 November. Many Members are councillors or have been councillors. I shall read a sentence from the code of conduct, which is very clear:
“You must ask yourself whether a member of the public—if he or she knows all the facts—would think that your personal interest was so significant that it would probably affect your decision on the matter. If he or she would think your judgement would be affected, then you have a prejudicial interest”.
That is certainly what we witnessed on 15 November.
I did not intend to speak. I was not prepared and no one had sent me briefing notes. However, I felt that I ought to stand up and speak, and to address the imbalance. I know the noble Baroness, Lady Jones, objected to some of the comments being made. I spoke at length, trying to balance the debate. We heard over 15 times about Lord Lester’s integrity and contribution—and rightly so—but we heard nothing about the complainant and her contribution to public life. Somehow that was not worthy of discussion. I felt it was important to put that on the table and add it to the debate. I am glad that I did.
I was not sure at the time—I thought I was maybe missing something and that this was how such reports were debated in your Lordships’ House—but I thought it important to introduce some balance as someone who, as I said at the time, experienced sexual harassment years ago. I can still remember it and its impact on my professional life at the time. I was glad that I had spoken. After the debate, when I went home, I opened my emails. I had many emails from members of staff, both here and outside, in other political parties, and from Members of your Lordships’ House who had heard about it, read Hansard and wrote to me saying,  “Thank you for speaking up. I am so sorry I was not there. I fully intend to be there next time. We did not think it would go on so long and that there would be a Division”. I am glad that this is happening on a Monday, when your Lordships’ House is better attended by people who want to be involved in this debate and have their say.
Then I heard about the 74 members of staff here who wrote in alarm after reading what had transpired in that debate. I say to those women who wrote— 74 really respected members of our staff—that we hear them. I hear them. We hear them and we attach great respect and responsibility to their concerns. When you read that sexual harassment, bullying and groping are “far too common” in the House of Lords, what does that make you think? We really need to take women seriously. There is another generation now who will not tolerate that kind of behaviour—and nor should they. When they say that they want Parliament to be a safer environment to work in, surely we all want that. That is what this is about. We must listen to women and support them as well.
What is missing in these procedures is any support for the complainant; I am glad the Senior Deputy Speaker said that. She was cast adrift. It was all very well for Lord Lester’s eminent and well-connected friends to use their positions to write columns in the Times, to give interviews to the media and to speak in a very prominent way—they have that. The complainant did not have any such recourse or support apart from her immediate family and friends. That needs to be addressed and we need to consider what has happened in the other place following the Dame Laura Cox report on bullying and sexual harassment, because it is clear that Members of your Lordships’ House should not “mark our own homework”. It is time we had more independence in the way that these proceedings are dealt with.
I endorse the report and welcome its conclusions. I pay tribute to Ms Sanghera for her courage and resilience as she goes through a very difficult time. I hope she can draw a line under this and move forward with her life. I say to all other women who want to come forward: please do, because you will be listened to.

Viscount Hailsham: My Lords, I rise to express my concern at the procedures that this House has adopted with regard to the case of Lord Lester. In expressing these views, I make it plain that I am making no criticism of the commissioner. I accept that she was conducting her functions in accordance with the rules that were laid down by this House. My concerns lie with the procedures that we have put in place, rather than the manner in which they were exercised.
Lord Lester has resigned from this House, so this debate can be more general in content than was the case on 15 November, when his future was being discussed. I will make just two comments about Lord Lester. For the avoidance of doubt, he is in no sense a close friend of mine. First, I do not take his resignation as an admission of guilt. I can well understand that this process has been extremely distressing for him. He has said that these events have had a serious impact on  his health and for that reason he wishes to draw a line under them. I can well understand that decision. It is a sufficient explanation for his resignation. Secondly, Lord Lester has made an important contribution to the law on human rights, to this House and in public life in general. That is an important legacy, which, notwithstanding the findings of this report, will always stand to his credit.
My concerns about the procedure that this House adopts are of long standing. I first expressed them in 1997 in the House of Commons when the case of Neil Hamilton was under consideration. Mr Hamilton was no friend of mine. His was not a popular case. But I formed the very firm conclusion that he had not been fairly handled by the parliamentary process then in place, which is substantially the same as our own.
I regret that I could not be here when this matter was debated on 15 November. I have, however, read the Hansard and the two reports produced by the committee. I am reassured to note that the views that I am about to express are very much in line with those expressed by, for example, the noble and learned Lord, Lord Woolf, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Pannick, and the noble Lord, Lord Thomas. I am happy to associate myself with them.
I have never held high judicial office nor been a frequent advocate before the Supreme Court; I am but a jobbing barrister, but I have jobbed for 50 years on and off in both the criminal and the civil courts. I presently act as the legal assessor to the regulatory panel for the Nursing and Midwifery Council and the Health and Care Professions Council, and until last year I helped to regulate the doctors as a legal assessor. For these regulatory panels—indeed, for all the statutory panels of which I am aware—Parliament has laid down by statutory instrument a precise procedure that has to be observed in order to ensure that the principles of natural justice and fairness are observed, and the appellate courts are rigorous in enforcing compliance with those requirements. Paragraph 15 of the further report states that,
“professional bodies have systems very similar to our own”.
That is not my experience. It is not correct in respect of professional bodies regulated by statute. In respect of them, the further report is wholly mistaken.
Very recently I was the legal assessor in a case that is relevant to the one we are considering. A registrant was alleged to have had sexual relations with a former patient during and after the provision of treatment. In accordance with the procedure laid down by Parliament, both parties were represented by counsel; the regulator’s lawyer opened the facts of the case and submitted to the panel the previously made statements of relevant witnesses; and the relevant witnesses were called and cross-examined. The registrant then gave evidence and was cross-examined. Closing submissions were then made. This was the procedure laid down by Parliament. It ensured that a fair process was observed. Had it not been followed, the appellate courts could have intervened.
Yes, the registrant had had sexual relations with the former patient, but these had commenced after the conclusion of the treatment and at the instigation of the patient. Moreover, the sexual relations were continuing,  years after their commencement. These facts were not clearly apparent from the papers and emerged as a result of the process that I have just described. They were highly relevant to the ultimate conclusion.

Baroness Jones of Moulsecoomb: Forgive me—I just do not see the relevance of this. I am sure there is almost no Peer in this House who does not think that our processes are inadequate and are going to be changed in future. I wonder if the noble Lord is trying to describe a system that he wants imposed here. I suggest that that would be better given in writing to the committee, rather than our hearing about other processes at this time.

Viscount Hailsham: My Lords, when you have a topic of this importance, touching as it does on the liberties of Members of this House, it is entirely right that we should take part in a public debate. To say to the contrary is to try to suppress argument, and I will not be party to that.

Baroness Jones of Moulsecoomb: I was not trying to suppress debate; I was trying to suppress planning for future processes, which is clearly going to be a committee job.

Viscount Hailsham: I hope that future processes will be informed by the nature of this debate. I hope that noble Lords will participate in considerable numbers, so that future processes can be properly formulated in accordance with the views of your Lordships.
The system this House has in place is inquisitorial in character and provides none of the safeguards I have identified. There is no effective representation of the accused. There is no oral representation by counsel. There is no cross-examination of the relevant witnesses. These defects—and I regard them as defects—are especially important when, as in the case of Lord Lester, the allegations relate to events some 12 years previous. The consequences for him were self-evidently serious. Credibility was the central issue. The standard of proof was the civil one—namely, on the balance of probabilities—which is of course lower than that found in the criminal courts.

Baroness Smith of Basildon: The noble Lord has complained about the process not being one of cross-examination. I do not know if he heard the noble Lord, Lord McFall, explain at the beginning of this debate why this is an inquisitorial, not a cross-examination process. In normal practice, victims of sexual harassment would not be cross-examined. He might have found it helpful if he—and others— had examined the transcripts of the commissioner’s inquisitorial process by which she questioned the complainant, Jasvinder Sanghera. Has he taken the opportunity to read them?

Viscount Hailsham: In the end, of course, it is a matter of opinion, but I practised at the bar for 50 years, and I believe very strongly that cross-examination is essential if you wish to find out the truth of matters.

You would be wrong.

Viscount Hailsham: The noble Lord may say it is wrong, but that is my opinion. It is based on a  great deal of experience and is in accord with the recommendations.

Baroness McIntosh of Hudnall: My Lords—

Viscount Hailsham: If the noble Baroness will forgive me, I will proceed for the moment.

No.

Viscount Hailsham: Very well. If it is the wish of the House I will certainly give way to the noble Baroness.

Baroness McIntosh of Hudnall: Before the noble Lord proceeds with his argument, will he please answer the question put to him by the Leader of the Opposition?

Viscount Hailsham: Of course I believe that we need to look at our procedures and I am quite willing to consider the prospect of having an alternative method. I know, for example, that the noble and learned Baroness, Lady Butler-Sloss—

Baroness McIntosh of Hudnall: That is not the question to which I referred. The noble Viscount was asked by my noble friend whether he had read the transcripts of the evidence. There is a simple yes or no answer to that, I believe.

Viscount Hailsham: I have not read the entire transcript.

Oh!

Viscount Hailsham: I have not read the entire transcript of the evidence but I have read the entirety of the first and second reports. Furthermore, I have read all the appendices to them.
I come back to the central issue. We have set in place an inquisitorial system and we have to ask ourselves a very serious question. Does it measure up to the requirement in the Guide to the Code of Conduct which requires us to address and respect the principles of natural justice and fairness? We need to ask ourselves if there is a good reason why we do not. I am bound to say that I cannot identify a plausible reason for this. Moreover, our procedures do not comply with the recommendations made to Parliament by committees appointed to consider our procedures.
It is true that some of the recommendations to which I am about to refer were made in different contexts, but I suggest that they set out principles of fairness and natural justice which are general in application. I simply do not accept the arguments for not applying those principles, which appear on page 18 of the further report. The Joint Committee on Parliamentary Privilege reported in March 1999 and the noble Lord, Lord Pannick, recited—
Is the noble Baroness trying to intervene?

Baroness Smith of Basildon: No, pouring water.

Viscount Hailsham: I am so sorry; I did not mean to embarrass the noble Baroness. The noble Lord, Lord Pannick, recited the chief recommendations of the 1999 committee, which included a recommendation  that the person alleged to have committed the wrong should have the opportunity to call witnesses at the appropriate time and to examine other witnesses.

Baroness Smith of Basildon: I apologise to noble Lords for intervening again. Does he accept that that particular committee in 1999 was not looking at an internal disciplinary process but was in fact looking at how to deal with contempt of Parliament, which is a much more serious matter than an internal disciplinary issue?

Viscount Hailsham: It was laying down general principles of natural justice and fairness—that is the point. I believe that they have an application for all these proceedings. The recommendations in the 1999 report do not stand alone. Incidentally, the membership of that committee was extraordinarily distinguished. It included not only Lord Nicholls of Birkenhead but a former Lord Chief Justice, a former Attorney-General, a former Solicitor-General and two former Home Secretaries. Their views were not lightly to be disregarded.
In substance, they were repeated in the 1995 report on standards in public life. Again, they are substantially the same as those made in 1967 by the Select Committee on Parliamentary Privilege—again, a different context, but with principles of general application. That committee recommended that the rights granted to a person against whom a complaint is made should include the right to examine, cross-examine and re-examine witnesses and to make submissions to the Committee, including by an authorised representative. In the spirit of due diligence—

Baroness Falkner of Margravine: Does the noble Viscount accept that none of the cases he is speaking about mentions sexual misconduct—as paragraph 4 of appendix 2 on page 18 points out? Did he hear the intervention by the noble Baroness, Lady Kennedy, which absolutely emphasised that standards of conduct have moved on and that the context to which he refers is not the context in which women today expect to be treated—and to which I should say men would probably also ascribe? Does he accept that the House wishes to move on and that his peroration, although enormously important, could perhaps be put to the committee in writing—not because we are disinterested in what he has to say but because I am sure the Senior Deputy Speaker will accept that there might be a consultation where we will all have the ability to express our views on future conduct? We are now dealing with the report in hand and it would be expeditious if Members could keep their speeches relatively brief so that those of us who also want to intervene might have an opportunity to do so today.

Viscount Hailsham: That might apply also to interventions.

Oh!

Viscount Hailsham: No, let us be fair—that could very well apply to interventions. I think it is perfectly true that people’s understanding of the gravity of sexual misconduct has changed, but I very much hope that our understanding of the requirements of natural justice and fairness has not.
I recognise that Members of your Lordships’ House will say, “Thank God the lawyers have no role to play in these proceedings”. I get an echo of that from around me. My answer is that noble Lords would not say that if they had the misfortune to be a party to misconduct proceedings which could destroy their reputation.
When I started at the law—

Oh!

Viscount Hailsham: I recognise that lawyers are not the most popular members of the community. When I started at the law, it was held that it was better by far that guilty persons should go free rather than that an innocent person should be convicted. I believe that that remains the proper approach. We are now at serious risk of reversing that proposition. Perhaps society appears willing to tolerate the risk of the innocent being convicted so that all of those supposed guilty are caught in the net.
Our stated objective, as set out in the Guide to the Code of Conduct, is to ensure that allegations against Members are handled in a way that accords with the principles of natural justice and fairness. I do not believe that our present procedures do that. Indeed, they could get worse.

Lord Foulkes of Cumnock: I am not seeking to speak in this debate because I think this debate is serving no purpose whatever. The Senior Deputy Speaker has moved his Motion and we will not divide on it. As I understand it, there will be a review of the whole procedure, in which we will all be given the opportunity to make recommendations and suggestions. Why are we continuing with this—albeit erudite—completely irrelevant debate, when we have counterterrorism to deal with and then a Statement on Brexit?

Viscount Hailsham: It is never irrelevant to assert the importance of natural justice and fairness, and that is what I am doing. I am deeply concerned by the comment in the further report, which states that,
“cross-examination may be inappropriate for dealing with complaints of sexual harassment”.
On page 19 of the further report, it is stated that future changes in procedure for the investigation of sexual misconduct will recommend improvements aimed at providing better support for the complainant rather than for the Member. I welcome the former commitment but not the latter. We must be careful not to compensate for perceived historic injustices by creating future traps for the innocent. I believe that the procedures now in place expose Members of this House against whom allegations are made to the risk of serious injustice. We must be willing to look at those procedures again, with a view to ensuring that the principles of fairness and natural justice are respected.

Lord Butler of Brockwell: My Lords—

Lord Falconer of Thoroton: My Lords—

Lord Macdonald of River Glaven: My Lords—

Lord Taylor of Holbeach: My Lords, we should hear from the Cross Benches. I remind noble Lords that it is not customary to address the House for  20 minutes in an ordinary, non-time-limited debate. I believe shorter speeches would be welcomed by the House.

Hear, hear!

Lord Butler of Brockwell: My Lords, sensing the growing impatience of the House, I will speak very briefly indeed. I want to make just one point that I think illustrates the illogicality of the House’s procedures and the way in which they were pursued in this case.
In our debate on 15 November, the noble Lord the Senior Deputy Speaker said:
“The House deliberately delegated active investigation and assessment to an independent commissioner; it would be wholly wrong for the House to seek now to substitute the commissioner’s conclusions with its own”—[Official Report, 15/11/18; col. 2028.].
I intervened to ask what, in that case, was the point of the House being given the opportunity to debate the report at all—or, I might have said, Lord Lester’s right of appeal to the Conduct and Privileges Committee? If there is to be no questioning of the outcome of the commissioner’s report, what is the point of these further proceedings? If we are to be given an opportunity to debate, the fact that the commissioner conscientiously followed the procedures laid down by the House—and I believe she did—should not prevent noble Lords from expressing their misgivings about the outcome, and many have been expressed and felt in all parts of the House.
I must acknowledge that I have a partial view since I have known Lord Lester for the past 40 years and do not know Ms Sanghera. I agree with the noble Lord, Lord Pannick, and the noble Baronesses, Lady Kennedy and Lady Hussein-Ece, that the moral is that it is impossible for Members of this House to be impartial when we are judging one of our own. We should agree on what we think are fair procedures and, as Dame Laura Cox has said, we should then make the process entirely independent of the House.
I applaud the movement which supports women in calling out bad behaviour by men. I want my granddaughters to be confident that such complaints will be taken seriously, but I also want my grandsons to know that they will be treated fairly and proportionately. We should not allow citizens of this country, of any gender or status in life, to be judged and punished without a rigorous and fair process. I put on record that I fear the House’s procedures, though well intentioned and conscientiously carried out, have not produced that result in this case.

Lord Falconer of Thoroton: My Lords, I make three short points. First, I adopt in full the speech made by the noble and learned Lord, Lord Mackay of Clashfern, in the first debate. He pointed out that we all promised to abide by this procedure, that the complainant in this case made a complaint in accordance with that procedure, nobody doubted that the procedure was followed and then, at the very end of the process, this House said, “Sorry, although your complaint has been justified by the terms of this procedure, we are changing the rules now”. It was not an attractive sight to watch. I agree with the noble and learned Lord, Lord Mackay of Clashfern.
Secondly, the wrongness of the view that we have to have the orotund procedure described by the noble Viscount, Lord Hailsham, is obvious to practically anyone who has experience of disciplinary complaints. I include in the names of people to whom it is obvious the noble and learned Lords, Lord Brown of Eaton-under-Heywood, Lord Hope of Craighead, Lord Irvine of Lairg and Lord Mackay of Clashfern—the people who are on our Committee for Privileges. The idea that there is some legal bar to having a process whereby we have an inquisitor who asks the questions of both sides, putting both sides of the case, is absolutely ridiculous. Do not judge that as lawyers: judge it as ordinary people.
My third point—and the thing that makes me most angry—is the hypocrisy of some noble Lords in citing Dame Laura Cox in support of their position. What Dame Laura Cox said was that members of staff in the House of Commons would never believe that they would get a fair hearing if Members of Parliament were involved in making the ultimate decision. What happened when this case came along is that someone who was in chambers with the person we were considering, someone who had been a friend of his for years and somebody who went on holiday with him for years all spoke on his behalf. Nobody spoke on the complainant’s behalf at all. The House then voted in favour of remitting it back to the committee. We should not regard the debate on 15 November as anything other than a sign of extreme hypocrisy.
The particular hypocrisy that I focus on is the fact that the reason it was remitted was because we focused on process and all of Lord Lester’s friends then voted to remit it, despite the fact that that was the most obvious breach of process. I urge the House, by what we say today, to give the fullest possible support to the noble Lord, Lord McFall, in what he has asked us to do.

Lord Macdonald of River Glaven: I wish to address the House for a few minutes only on a subject to which many noble Lords have alluded, which is cross-examination. I cannot claim the 50 years of the noble Viscount, Lord Hailsham, but I can claim 40 years at the Bar. During that time, I guess that I have spent hundreds of hours in adversarial proceedings cross-examining witnesses myself or watching co-defending counsel or opposing counsel cross-examining. That has been the greater part of my professional life.
Many noble Lords in this debate and in the debate last month have reminded the House of the famous dictum that cross-examination is the greatest legal engine for the discovery of truth ever invented. Of course it can be, and I have seen it so. I have seen liars unmasked, fraudsters exposed and terrorists cross-examined into confinement for decades. But my years of experience have also taught me that, like most aphorisms, this one is not able to paint the whole picture. Cross-examination can, of course, uncover the truth, but it can also obfuscate. It can advance a false prospectus, and it can intimidate. In adversarial proceedings, especially where freedom and forced confinement are in issue, its essential combativeness is indulged, but always and only under the watchful eye of a trained, professional judge.
I am sure that cross-examination can be one way to get at the truth, but I have never believed that it is the only way. In particular, I have never doubted that a diligent and fair inquiry by a competent tribunal, taking the necessary evidence, examining the relevant issues and asking the proper questions, is also capable of uncovering the truth. Tribunals proceed in this way every day, in this country and in other fair-trial jurisdictions around the world. The questions asked by a tribunal are, of course, a form of cross-examination in themselves, but cross-examination conducted in a more neutral, more objective manner, perhaps better suited to the inquisitorial style.
It is clear to me from the papers in Lord Lester’s case, which I have read, that the commissioner asked the complainant about all of the primary matters that might have been put in cross-examination: “Why did you go back to Lord Lester’s house?”, “Why did you dedicate the book to him in the way that you did?” and so on. And the commissioner got her answers. It is true that these questions were asked in a gentler, more neutral way than might have been expected from a robust cross-examining lawyer, but there is no harm in that. Indeed, there are many situations in which this sort of low-key approach is more likely to get at what really happened, precisely because it occurs in a gentler, less aggressive environment. In my judgment, a disciplinary hearing, particularly where sensitive allegations of sexual misconduct are being aired, is certainly one of those situations.
Your Lordships could have mandated an adversarial disciplinary regime. I would not have recommended it, but you could have done so. This House could have mandated an inquisitorial system in which the participants were lawyered up, including for the purposes of cross-examination. Again, I would not have recommended this, but it could have been recommended. Even though both these things could have been done, they are emphatically not a pre-condition for a fair process. On the contrary, in my judgment, the process that your Lordships alighted upon was, for all the reasons that other noble Lords and the committee have set out, reasonable and fair.
Let me address one final thing on this subject, the standing of the commissioner. Lucy Scott-Moncrieff is a figure of the highest reputation in the legal world, a solicitor with a distinguished practice, a past President of the Law Society and a founding member of the Queen’s Counsel appointments panel. This House could hardly have selected someone more suited to the difficult task in hand or more deserving of our trust. Your Lordships devolved to her the power to inquire fairly and thoroughly into the circumstances of Lord Lester’s case and to come to her reasonable conclusion on the evidence. That was her warrant. In my judgment, she discharged it faithfully.
Before I sit down, I wish to say one other thing briefly. During my five years as a public servant, as a prosecutor, my colleagues and I struggled endlessly against the sort of insidious stereotyping that bedevilled sex crime prosecutions. “Why didn’t she report it sooner? Why didn’t she distance herself more? Why was she wearing this? Why was she drinking that?” In the end, we believed that we were making some progress, as  judges repeatedly warned juries about the dangers of making stereotypical assumptions about the way that traumatised people react to the source of their trauma, warning them that they should not allow what may be little more than prejudice to cloud their judgment of the fact that an injustice has been done. Let us not find ourselves, in this House, moving backwards.

Baroness Jones of Moulsecoomb: My Lords, I was at the debate last month. I do not know if any of your noble Lordships have seen “Groundhog Day”, but this has similarities. We are going over the same ground again. I should like to make two points. First, I support the Committee for Privileges and Conduct. Its robust response to the November’s debate was superb. I was furious during the debate; I walked out at one point, because I was so angry with a Peer who was speaking. The report is fantastic and obviously I will vote for it if anyone decides to divide the House.
Secondly, I never thought these words would pass my lips, but the noble Lord, Lord Pannick, is wrong. He was wrong to press the amendment last time and he would be wrong to push it today. He talks about fairness all the time. Was it fair to divide the House when there was no expectation of a vote and many Peers had gone home because the debate went on for much longer than expected and they had trains to catch? As I see it, fairness is not playing a full part in this process.
My last point is a question for the Senior Deputy Speaker. Lord Lester has resigned rather than been suspended. Does that mean that he maintains his rights and privileges of access here in this House, such as eating here and so on? I am sure that many of us will feel that natural justice would suggest that he should not.

Lord Baker of Dorking: My Lords, I shall be brief. I find debates on the conduct of Members of this House and of Members of the House of Commons rather sad and distasteful affairs because we are being asked to sit in judgment on our friends and colleagues. That really cannot be right. History shows that there have been many more cases in the Commons than in this House, the most famous of which was the Marconi scandal, when three Liberal members of the Cabinet bought shares in the company knowing that it would be given a contract. Today they would be put in jail. Eventually a Select Committee of the House of Commons exempted them all; they were totally guiltless. In fact, one was made the Lord Chief Justice.
I agree strongly with the proposals made by the noble Lord, Lord Pannick, in his speech. I do not object to the report of the committee, which has done a proper and correct job. But I also think we need an entirely new procedure and I agree with the noble Lord, Lord Pannick, that there should be a genuinely independent body operating under the conventions and practices of the legal system. Such a body should be drawn up and we should accept it, but let us know what we are accepting.
When it is recommended that a Member of this House be expelled, that should not come back to this House for approval. We then cease to be a court of justice and we become a parliamentary assembly. A  parliamentary assembly has other feelings, emotions and loyalties, built on friendship and respect over the years. The public cannot possibly believe that we could act independently. By having an independent body, Members of this House must recognise that we would be restricting our powers in that position, which is absolutely necessary.

Baroness Armstrong of Hill Top: My Lords, I want to intervene briefly, particularly to follow the speech of the noble Lord, Lord Macdonald of River Glaven, about cross-examination. I refer noble Lords to my relevant interests as set out in the register. I have spent a lot of time working with women who have suffered sexual exploitation and are vulnerable, but I am not saying that there are direct parallels. I am saying that there is no system that anyone believes is fully fair and objective in these cases. The most recent evidence shows that even when a judge has been aware of the advice and recommendations about how to conduct trials involving the cross-examination of women who have suffered sexual exploitation, the women’s experience leads them into mental health problems and other real difficulties.
I draw the attention of the House in particular to the recent safeguarding report from the Newcastle case called Operation Sanctuary. The person who conducted the inquiry was a barrister named David Spicer. Some lawyers in this House may know him; I am not in the legal profession so I know very few of them. He looked at the criminal court experience and court processes for supporting the victims and survivors of sexual exploitation. He said that a dedicated trial judge was appointed to preside over all the trials in Newcastle. She took care to ensure that proper processes were followed and that there was no cross-examination that went beyond what is permitted. All the complainants had access to social care and mental health professionals. However, David Spicer also reported that all the victims who gave evidence and contributed to his review complained about how they were treated in cross-examination—about the pressure, the aggressive questions about their backgrounds and motives, along with their personal details, the records of which they were previously unaware of. They told him that their long-term mental health had been badly affected, and I can testify to that, because the organisation I chaired, Changing Lives, worked with them before the trial, to get them there, and continues to work with them.
There is no perfect process. In his recommendations, David Spicer asks the Government to re-examine this issue, so that we are better able to talk about a fair process in cases of sexual exploitation. The courts do not get it right, so is it any wonder that people continue to try to find ways for this House to do it better? We should not kid ourselves that we will get a perfect process. Many women have experienced different types of sexual exploitation from what we are talking about in this case. They will suffer for years to come, and we have not yet found a fair process.

Baroness Butler-Sloss: My Lords—

Baroness Shackleton of Belgravia: My Lords—

Lord Taylor of Holbeach: My Lords, I suggest we hear from the noble and learned Baroness, Lady Butler-Sloss, and then my noble friend Lady Shackleton.

Baroness Butler-Sloss: My Lords, your Lordships will be relieved to hear that I have cut out almost everything I was going to say, but I wish to say something about the future. I do not apologise for this, as I wrote to the chairman of the Committee for Privileges and Conduct three weeks ago, and have not yet had a reply. As a result, I need to say it here, in case it is not taken seriously.
The committee may, and I say this respectfully, have underestimated the difficulty of making a decision on serious issues of credibility in cases where the parties give diametrically opposing accounts of what happened and what was said. I do not believe, however, that it is necessary to have an adversarial system, so I disagree with the noble Viscount, Lord Hailsham. The current process, put in place by the Committee for Privileges and Conduct of this House, is entirely right. In most cases—for instance, the recent cases of financial misconduct—it is entirely appropriate for the commissioner to deal with the case by herself. There will be other types of case that will be equally appropriate for the commissioner. I have enormous respect for her—I know her well, and chaired the QC panel, of which she was an important member.
When I wrote to the chairman, I suggested that in future cases with serious conflicts of interest, where the credibility of the parties and witnesses is disputed, the commissioner would be helped by involving an experienced QC, who would ask the questions. Where appropriate, and tactfully—certainly in relation to the complainant—the QC could ask sufficient questions to test the case against the respondent, as well as cross-examine the witnesses and the respondent to see how the case and the defence stand up. I am not criticising Jasvinder Sanghera—I know her well, and admire the work she does—and did not criticise her in my last speech. The House must recognise that where serious allegations are denied, they will arise again in relation to Members of this House. This will not be the only case, and we must be ready to deal with future cases with the 21st century method of due process and natural justice.

Baroness Shackleton of Belgravia: My Lords, I declare my interest: I am not a friend of Lord Lester. I sat on the same Select Committee as him. I like every member of my committee, and I am very blessed to be on such a nice committee. In similar circumstances, I would hope that this House regards our duties as overriding our friendships. It is insidious to suggest that Members of this House would put their friendships above their duties to the House, and it is offensive to suggest that people would vote in the same way, as in the suggestions of “Lester’s mafia” plotting against the House. I have spoken to many people in this House; they have told me that, despite the fact that this is about Lord Lester, they feel that there is something not right about the report.
The other misconception is that those who voted against the Privileges Committee, which investigated this case, were not suggesting that Lord Lester was  innocent but that this should be looked at again. That was not on the agenda and not what we were voting for. On reading the second report, I was most concerned by appendix 1. We are served by a number of unbelievably loyal and genuine staff, from the cleaners to the restaurant staff to the doorkeepers to the librarians. No wonder they expressed dismay when noble and learned Lords such as the noble Lord, Lord Woolf, and the noble Baroness, Lady Butler-Sloss, speak up against the committee’s conclusions. There is obviously a problem if judges and other people have differing views on both the process and the result.
Looking forward, I beg the committee to concoct a scheme that gives some sort of certainty, not just to women. I identify with the noble Baroness, Lady Hussein-Ece, because I have suffered in the way she suggested, but that does not mean that all men are guilty. Men are entitled to just as much of a fair trial as us women, but women must not be precluded from bringing forward their complaints. There must be a fair process whereby the men feel as protected as the women who accuse them, particularly in the current #MeToo environment.
I finish by saying that I am still not satisfied about Lord Lester’s guilt, particularly because the commissioner did not investigate each allegation separately but took them as they fell, as was referred to by the noble Baroness, Lady Kennedy. I read David Perry QC’s report; he read all the appendices and transcripts and came to the complete opposite view. In circumstances where two, or many, rational people reach opposing views, surely it is for this self-regulating House to come up with a solution that serves everybody fairly going forward.

Lord McNally: My Lords—

Baroness Young of Hornsey: My Lords—

Lord Taylor of Holbeach: We will hear from the noble Lord, Lord McNally and then from—

Oh!

Lord McNally: My Lords, I would gladly have given way, but we will both get in from what I gather from the mood of the House.
I want to clarify that I have no Marconi shares. As I have explained to the House, I once met a very distinguished American lawyer. When I explained that I am not a lawyer, he said, “Then I’ll speak very slowly”.
All I want to say is that I hope that the noble Lord, Lord McFall, reads the transcript of his opening speech and then regrets it and thinks again—

Oh!

Lord McNally: Because what the noble Lord said in his peroration was that what will come back in January will not be a new system but tweaks to the existing one. We will read Hansard tomorrow and see whether it has been satisfied. Some 170 people voted, so around 200 people must have been there for that debate last Thursday. It would have helped if the noble Lord, Lord McFall, had not announced within 24 hours he  would overturn that decision and apologise to the claimant. That does not sound like listening to this House.
If anything has come out of this debate, it is the conclusion that has come through time and time again: this process is not satisfactory for what it is meant to do. I make the point again. I was the leader of the Liberal Democrats and part of the leaders’ committee that appointed the Eames committee. There is no question that the Eames committee code of conduct aimed to deal with sexual harassment—it was not discussed.
The idea that “The rules are the rules, and this is what we have done” ignores one of the most important things in the first report: an unknown journalist sounded out the officers of the House some time before this complaint was made, and got the ambiguous reply that it was probably right to make a complaint in this way, but the House would probably need to update its procedures on sexual harassment. This is the problem. Everybody who says we should not retry the case then starts mentioning it, but the truth is this: if the Eames committee code of conduct is fit for purpose, why was it not used within three years of the alleged offence? Why did the complainant wait for another seven years?

Oh!

Lord McNally: Wait a minute. Read what she says. Why did she wait another seven years? She did so for political reasons, not for trauma. It is not outrageous.

Lord Falconer of Thoroton: Is it appropriate to undermine somebody who does not have a chance to answer? I invite the noble Lord to stop this now.

Lord McNally: I will not take any advice from the noble and learned Lord. He has already talked about hypocrisy; I bow to his expertise in that. I am embarrassing myself then.

Yes!

Baroness Falkner of Margravine: You are not just embarrassing yourself; you are embarrassing all of us.

Lord McNally: All trials are trials for one’s life; all sentences are sentences of death. We are talking about a man who, until this case, was one of the giants of civil liberties, of sexual liberties—

Lord West of Spithead: My Lords—

Lord McNally: No, I will not give way. Give me two minutes and I will stop.
There was no questioning for 11 years. By ignoring the four-year limit and taking an 11 year-old case, we have left ourselves with a very low threshold for future complaints. I beg the noble Lord, Lord McFall, and the establishment of this place to think hard. In these debates, there has been a real concern that handling these matters is beyond the competence of this Chamber. I strongly support us giving some constructive ideas about how these can be handled with real fairness.
Every time you try to make these points, certain people immediately accuse you. I have every reason for wanting to see in place a law and codes of conduct that protect young women. I will not give way to anyone in the idea that that is not my intention. But we do not do so by overreacting to any question that the procedure could have been faulty or by not being willing to listen to very real concerns that this needs  a much more fundamental review and change than was offered in the opening speech of the noble Lord, Lord McFall.

Baroness Young of Hornsey: My Lords, wow! I cannot tell your Lordships how sad it is for me to have to follow the noble Lord, Lord McNally. I have been a great admirer of his work. We have worked together on a number of issues relating to the criminal justice system. I bow to his knowledge and expertise in that area, particularly his stewardship of the Youth Justice Board. But I find his comments completely out of order and totally inappropriate. They demean the value of the debate we have had this afternoon precisely because they were not at all objective. They had no real sense of moving the debate forward. Indeed, he misunderstood, misinterpreted or misheard—or maybe the noble Lord, Lord McFall, miscommunicated—the fact that we all agree that these procedures need changing. Indeed, the House’s reluctance to change over the years has been one of the major problems in this place.
I will now say what I intended say. I declare an interest as a member of the steering group tasked with implementing the recommendations of the working party set up to address bullying and sexual misconduct, convened by the leader of the other place. As such, I had access to the views of all key stakeholders in this very important issue: Commons’ staff, Members of both Houses, trade union representatives and so on. As somebody has already said, we will have to deal with this issue time and again. Anybody who thinks that it does not happen here is hugely mistaken.
One of the critical issues raised during that series of discussions and consultations was historical cases. There is plenty of literature that describes why people take so long to come forward—not just women, but men too. I met a man last week at a conference on sports and human rights who had suffered appallingly at the age of 15 and only now felt able to come out and talk about it. That is what happens, for various reasons. I cannot put myself inside his head and tell noble Lords why, just as the noble Lord, Lord McNally, cannot put himself inside anybody else’s head and say why this is the case, but it happens. It is a regular pattern. The damage caused by these incidents and events has a ripple effect on not just the individual, but their friends, family and professional contacts.
I do not want to rehearse previous arguments made on either 15 November or today because I am sure the House is running out of patience, but I support the remarks made by other noble Lords too numerous to mention that drew attention to the inequity embedded in this case. Again, I speak not as a specific friend of Lord Lester—again, I worked with him—and I do not know the complainant. But noble Lords will be aware  that the original working party inquiry that covered both Houses, of which my noble and learned friend Lord Hope was a member, and the subsequent report by Dame Laura Cox were established by Parliament as a result of a steady flow of disturbing reports of bullying and harassment across all levels of staff and Members. While I hope that the severity and quantity of similar problems in this House will not be as great as it appears to have been in the House of Commons, I fear that some noble Lords may be shocked by the outcome of the recently commissioned independent inquiry.
I am trying to move the debate on a bit from where we are now. I say this because a number of noble Lords have expressed surprise at the idea that anything so awful could possibly have happened to somebody was, or involved anybody who was, their friend. It happens. Interestingly, others—maybe from different publics than those that other noble Lords have access to—have spoken to me of a range of examples of misconduct in this House. This House has prided itself on its integrity and belief in a code of honour. Sadly, that is just not enough now. Somebody mentioned the 21st century. I wish we could get that far forward in this House on some of these issues. We are often too slow to acknowledge changes that have happened in society, which are not being reflected in this House. The experiences some of us have had here give testament to that. I know because once people realised that I was on the committee, they would come to me with examples of things that had happened to them or that they had witnessed or heard about.
Part of our problem is that privilege and power have become normalised. We think we are owed the privilege and power that we have within this House. I do not believe that to be healthy, because in doing so we distance ourselves from the everyday experiences of most people in our society, which is highly problematic.
I am not going to go over the comments made on 15 November, but that debate reiterated for me that the concept of natural justice must be applied to everybody equally, not just to friends or to a privileged few with access to platforms from which they can continuously express their views.
Abuse is invariably about asymmetrical power  relations. Sadly, therefore, it was no surprise to me that the 74 members of staff sent that letter to the Privileges and Conduct Committee. That letter was from our colleagues—members of staff whom we work with here in this House—and they pointed in no uncertain terms the chilling effect of the thrust of that debate and the result of the Division. Indeed, others outside of this Palace of Westminster pondered the wider implications, including what happens in our courts when a criminal sexual offence has been committed and someone comes forward with an historic complaint.
The way we are set up here does not help. Those of us who have researchers and assistants, travel abroad and hold one-to-one meetings must ensure that we understand and adhere to appropriate standards of behaviour. Part of the problem is that there is no way of knowing definitively who does work alongside House of Lords staff and Members. This poses a significant  risk, particularly to young people coming in, who may have little or no knowledge of the world of work, how power works and what kind of behaviour in this unique institution is and is not acceptable.
When the time comes, I hope noble Lords will embrace new procedures; I shall be interested to see how that debate goes. I hope those new procedures will be adopted as the basis, at least, for a reworked code of practice that brings this House’s way of dealing with misconduct up to date and into alignment with recently adopted procedures in the House of Commons. That is sorely needed to restore faith all round.

Lord Newby: My Lords, as noble Baroness the Leader of the House said at the start of this debate, I had not intended to intervene, and I strongly support the committee’s report. However, I must publicly dissociate myself from some of the comments made, particularly, I am afraid, by my noble friend—my old friend—Lord McNally. I strongly support the complainant and would not wish her to believe that the sentiment of the House is anything other than to give her support at this time, rather than criticism.

Baroness Smith of Basildon: My Lords, I sense the mood of the House is that we should be drawing the debate to a close. I appreciate that it probably was not easy for the noble Lord, Lord Newby, to make those comments; I think the House is grateful that he did.
As my noble friend Lady Kennedy said, this is not a court of law. We are dealing with an internal disciplinary procedure of your Lordships’ House. I would like to place on record, and I hope the House will concur with me, our thanks and appreciation, to the commissioner for undertaking what has been a long and detailed inquiry, to the sub-committee that first looked at this and said it was appropriate that the committee address the issues—I know from my own work the amount of time and effort they have taken to read the reports and to look at the information—and to the Senior Deputy Speaker. I hope not one iota of anything he said at the Dispatch Box today—which I strongly support—will be retracted.
In the previous debate, the noble Lord, Lord Pannick, and other noble Lords, raised issues of process. Contrary to his disappointing assertions that they were ignored by the committee, they clearly were not. The House voted by 78 to 101 that the commissioner had failed to comply with paragraph 21 of the Code of Conduct, which requires her to act in accordance with the principles of natural justice and fairness, but gave no direction on what should happen next, other than that it should be remitted to the committee and it was for the committee to look at the matter. The committee did, at length and in full, and it has produced a further report, which endorsed our previous recommendation after further and detailed consideration, and which it asks your Lordships’ House to consider and accept today. These issues were re-examined by the committee. The noble Baroness, Lady Shackleton, said that the committee investigated. No, it did not; it was an independent investigation by the commissioner appointed by this House.
I was extremely disappointed by the comments made about the qualifications and experience of the commissioner and I am glad that they have been redressed today. The noble Lord, Lord Pannick, said that he considered such criticism of the commissioner appropriate. To criticise her qualifications and experience is not appropriate. I was on her appointment panel, as was the noble Lord, Lord Newby. If people have concerns about those aspects, they should criticise the noble Lord and me, who continue to have full confidence in the commissioner and her work.
The debate of 15 November has been given extensive consideration today, but it went way beyond what many of us considered appropriate or necessary for the matter being discussed. As the noble Lord, Lord McFall, said, Lord Lester was referred to several times during it. Lord Lester has an enviable professional reputation and his work is held in high regard, as was rightly referred to in the debate. However, the complainant, Jasvinder Sanghera, also has an excellent and impressive professional reputation, but that was not acknowledged and it must be today.
I want to reflect on two or three things that have been said in your Lordships’ House today. My noble friend Lady Kennedy of The Shaws correctly identified the problems of sitting in judgment on friends and colleagues. That is why we have a process of independent, thorough investigation by the commissioner. We have also to consider our role in your Lordships’ House. The noble Lord, Lord Pannick, who criticised the commissioner’s report, has not only been a personal friend of Lord Lester—we all understand the pressures that brings—but acted as judge and jury on the decision, was a lobbyist for him, wrote newspaper articles putting the case for him and was an advocate for him in this House. There is an issue about process and procedure that has to be questioned: being judge, jury, advocate and lobbyist for an individual who is a friend and a Member of your Lordships’ House does not seem appropriate.
The noble Lord, Lord McNally, in a somewhat embarrassing speech, talked about the wrong process. What else was the complainant to do? How else is somebody supposed to make a complaint? If the process is not perfect, are they to stand back and not make a complaint? It is right that people should feel that they can come to your Lordships’ House and make a complaint when appropriate. Comments have been made both today and previously about how women who have been the victims of harassment or abuse should behave. There is no blueprint that says, “If this has happened to you, this is how you must behave”. The commissioner has used a process in her investigation. The noble Lord, Lord Pannick, referred to a book being signed affectionately. Women across this House will tell you that such behaviour is not abnormal where people feel uncomfortable after somebody has harassed them or behaved inappropriately towards them but go on to have a professional relationship with them, particularly if it is in public. Others said, “I’ve never heard anything like this before”. Sometimes our friends behave inappropriately. That is exactly why professional investigators are required; it is not a decision just of your Lordships’ House.
The noble Viscount, Lord Hailsham, referred to the 1999 committee on parliamentary privilege. I said in my intervention on him that the report was on a matter relating to the contempt of Parliament, which is an imprisonable offence. That is why the standard of investigation should be higher than for an internal disciplinary matter.
We came back to the cross-examination or inquisitorial process. The noble Viscount eventually had to admit that he had not read all the transcripts, I think he said. My understanding is that only two Members of your Lordships House asked to see the transcripts at all. The transcripts, which members of the committee and I have read, clearly indicate an inquisitorial process by the commissioner to do justice to the evidence and test the information given to her.
I have two final comments. First, I entirely concur with the comments made by my noble and learned friend Lord Falconer about Dame Laura Cox. She made the point, similar to that made by my noble friend Lady Kennedy, about the power relationship. We sit in your Lordships’ House as a privilege: that does not mean that we cannot treat anybody else with anything other than utter respect at all times, and if any of us falls short of that in our personal behaviour we should be challenged. However, Dame Laura Cox looked at that power relationship and her concern is that Members and staff of the House of Commons—it was not your Lordships’ House; we have undertaken that work—were concerned that the process did not allow them to make a complaint or raise a concern because of the unequal relationship. For those who say it must be an independent process and not involve your Lordships’ House, it was an independent process by the commissioner and a number of noble Lords have declined to accept the comments she made.
Finally, this has caused enormous concern and distress to the staff of your Lordships’ House and to others across the House who rely on us to uphold this as a safe and respectful workplace. The debate last month did nothing to enhance that reputation. It is a very sad state of affairs when we must have a debate such as this on a report. I should hope there would be some trust in the commissioner, who undertook her responsibilities diligently and carefully with respect for all involved; in the sub-committee and its members, who said that it should be investigated; and in the committee as a whole and the noble Lord, Lord McFall. However, the greatest respect we should show should be for the complainant who has had to sit through these debates.

Lord McFall of Alcluith: My Lords, it falls to me to respond briefly to the debate. At the outset, I acknowledge how difficult this topic is for all of us. It is not a subject that any of us would wish to be debating today or any day. I shall pick up a number of points. First, yes, I received the email from the noble and learned Baroness, Lady Butler-Sloss.

Baroness Butler-Sloss: I wrote a letter.

Lord McFall of Alcluith: Perhaps it was translated into an email as well, but I read it. In fact, I read  it again in the Times of 13 December and I read the  reply of the noble Baroness, Lady Jay, of 15 December. Then, this morning at 5.30 am, I read the reply of the noble Lord, Lord Thomas of Gresford. What does that indicate? It indicates that there is a lively debate. The point that the noble and learned Baroness is making, on procedure, is for the future, and she can be assured that it will be taken on board.
The noble Baroness, Lady Jones, asked about access rights for Lord Lester. That is a matter not for the Privileges and Conduct Committee but for the House of Lords Commission, which will meet on Wednesday.
The noble Lord, Lord Butler, asked about procedures. The role of the House is to satisfy itself that its own procedures are set down in the code and the guidance to be followed. Those procedures were established in 2009 in the Leader’s Group by the noble and right reverend Lord, Lord Eames. Since then, I believe that there have been seven revisions and, as has been mentioned, when there is a general election we have to sign up to that code. So since 2009 there have been 10 opportunities for people to comment on the procedures. Given the highlighting of the debate here, I urge Members to put their comments in, because the Privileges and Conduct Committee will be looking at the independent complaints and grievance procedure recommendations in the new year.

Lord Butler of Brockwell: Sorry to interrupt the noble Lord, but is it not the point of the Motion today to approve the report on Lord Lester? It is not about future procedure.

Lord McFall of Alcluith: There are two issues here. There is a point about future procedure and shall deal with that. Separately, there is the Motion to approve the P&C report today, which I hope people will agree to. Those two issues are very separate.

Lord Foulkes of Cumnock: Can the noble Lord confirm that it will be a comprehensive review and reassure the noble Lord, Lord McNally, that it will not just be a tweaking?

Lord McFall of Alcluith: Absolutely, it will be a comprehensive review. By the way, I give a general invitation to every Member here to write to us with their views on that. I look forward to an avalanche of comments in the next month or so. Looking at this issue, it will most definitely be a comprehensive review.

Baroness McIntosh of Pickering: Will the noble Lord explain whether other complaints presently on the table against Peers in this House will be determined according to the same rules as the report before the House today?

Lord McFall of Alcluith: I have no knowledge of any complaints against other Peers in this House. I make that clear.
I mentioned the noble and right reverend Lord, Lord Eames, who established a concept of personal honour. That concept is central to this debate. In elaborating on that, he mentioned words such as selflessness, accountability, integrity, openness, objectivity and honesty.
To conclude, we are dealing with two individuals who are both eminent and respected in their fields, as I said previously. As the noble and learned Lord, Lord Mackay, said on 15 November,
“the most severe burden that anyone has to carry is adjudicating upon the conduct of our fellow citizens”.—[Official Report, 15/11/18; col. 2017.]
I know from Members’ comments to me that they  have found this painful and distressing on occasion. The Independent Commissioner for Standards, the sub- committee and the Committee for Privileges and Conduct carried out their difficult task dutifully. The commissioner, an experienced lawyer and investigator, as well as a mental health tribunal judge, carried out her task precisely as laid down by the code and the guide that the House designed and agreed to. Each Member signs up to the code and the guide at the start of each Parliament. We must remember that, unlike the House, the commissioner had the unique advantage of seeing, interviewing and assessing the complainant and Lord Lester.
This is the redacted material, which every Member was invited to read before the first meeting. No one took up that invitation. We reiterated the invitation and two individuals have taken it up. I know that one Member has contacted the office to say that they would like to take it up on Wednesday. I invite all other Members to come along after this if they wish to see this material, because it is detailed, comprehensive and fair to both parties. That invitation is open.

Lord Faulkner of Worcester: I was one of the two Members who asked to see the material. The point that has not been made today is that the material contains the contemporaneous witness accounts of what happened in Lord Lester’s house. I found that evidence absolutely overwhelming and persuasive. I join the noble Lord in inviting other Members to read it as well.

Lord McFall of Alcluith: The noble Lord said that there were six contemporaneous witnesses. We invite Members to read their accounts.
In her own words,
“on the basis of the strong and cogent evidence of the complainant and her witnesses”,
the commissioner found that Jasvinder Sanghera was a victim of sexual harassment and that Lord Lester was guilty of a grave abuse of power. The Committee for Privileges and Conduct reviewed and endorsed this view. We ask the House to do the same. I hope the House will now agree to this report.
Motion agreed.

Counter-Terrorism and Border Security Bill
 - Report (2nd Day)

Relevant documents: 35th and 40th Reports from the Delegated Powers Committee, 11th Report from the Joint Committee on Human Rights

  
Clause 19: Persons vulnerable to being drawn into terrorism

Amendment 31

Moved by Lord Stunell
31: Clause 19, page 21, line 37, at end insert—“( ) After subsection (3) insert—  “(3A) The Secretary of State must ensure the collection and annual release of statistics on—(a) the religion, and(b) the ethnicity,of identified individuals referred under subsection (2).””

Lord Stunell: My Lords, my noble friend Lord Paddick and I tabled Amendment 31 because of the serious concerns expressed on all sides about the impact of the Prevent strategy on minority—particularly Muslim—communities. The noble Baroness, Lady Warsi, has been among the most eloquent in putting that view to the House. This has emphasised the fact that Prevent risks becoming counterproductive rather than counterterrorist. It is really important for the House to consider that critique and to respond to it and make sure that the legislation does as well.
There are concerns from within some of those communities themselves. At Second Reading the noble Lord, Lord Ahmed, spoke about that very eloquently. I have been approached by a number of organisations which work in the field of deradicalisation and minimising radical risks for those in minority communities; they have passed on their concerns as well. There are also concerns from the professional associations which represent some of those professionals who are required to be reporters and are drawn into the Prevent strategy. A senior clinician from my own area of Stockport has made the point that it undermines patients’ trust in the conversations they might have with their GP because they fear they might be reported. The professional teaching associations have some of the same concerns about the burden being placed on schools to deliver the Prevent strategy.
The fact is that there is a cost. It is our job to ask: is it worth it? Is the value worth the cost? We need to look at what measures Prevent is subject to. How is Prevent evaluated? How does anybody decide that it is effective? Can it be shown that unconscious bias is not present when people are selected for potential referral? In view of the debate we have just had, that question of unconscious bias might need to be nearer the top of our minds than we might otherwise have thought. Can the Minister really expect to get away with the argument that she deployed last time round that it was in part justified because there was a valuable by-catch, as it were, of other people who, although not being radicalised or in need of Channel support, in fact showed other, non-terrorist vulnerabilities? The question, then, is: how do we make Prevent more transparent? How can we make it so that, on the one hand, those who have fears and criticisms about it can be satisfied and, on the other, the Government can satisfy themselves that they are not in the same position that they were a few years ago about stop and search, where they actually did not know the answer to the criticism that was being levelled at police services?
All that having been said, we have tabled this amendment to make the case for better information. The reality is that 115 people, mostly young people, are referred into the system each week, and that of those 115 only six finish up with the need, or being assessed as having the need, for Channel support. The  Minister said in reply previously that about one-third of the rest receive some other sort of support—arising from other, non-radicalisation concerns, as I understand it. The amendment would help the Government to answer the question, “What religious background and ethnicity have those six people; what is the ethnicity and religious background of the 35 who receive some other sort of intervention that is not terrorism-related; and what about the 70 or so who have been caught by accident?” I described the last group as the “duds” in the previous discussion. What is the ethnicity and religion of those different segments of the people who are called in as a result of the current Prevent programme? With those proportions to hand, we could rapidly see if the net was catching the right fish.
It is difficult to understand why the Government are resistant to such straightforward mechanisms, which would help to restore trust and to challenge the perceptions of minority communities that they are being unfairly targeted. It would also give the Government a good way of measuring whether Prevent was doing what they themselves believe it is. I hope the Minister will look favourably on Amendment 31. I beg to move.

Lord Carlile of Berriew: My Lords, first, I draw the noble Lord’s attention to the existence of the Prevent oversight board, which last met a few days ago. It has not been meeting as often as it should,  but I heard the Home Secretary personally giving an undertaking that it would meet again in six months’ time. The board was established during the coalition Government, and was accepted by the coalition Government, in response to the review that I conducted —on behalf of the coalition Government—of the Prevent strand of counterterrorism policy. Its purpose was to do exactly the sorts of things set out in this amendment, which I regard as unnecessary.
Secondly, the noble Lord referred, in what I suppose was an argumentum ad maiorem, to the noble Baroness, Lady Warsi. I note with regret that she is not here in her place; indeed, as I recall, she has not been in her place for any part of the Committee or Report stages of the Bill. I draw his attention to the fact that she is not a unifying force in dealing with extremism and Prevent. She has accused the excellent new counter- extremism commissioner, Sara Khan, of being,
“neither connected to, nor listened to, nor respected by, nor trusted by, nor considered independent by most British Muslims—so”,
the extremism commission,
“has no ability to influence and affect change in its ‘target audience’”,
despite Ms Khan’s efforts to deal with the problem of attaining a range for a definition of extremism. I say to the noble Baroness, who I now see approaching the Chamber for the first time in these Committee and Report debates, that I regret that she takes a somewhat monolithic view of Islam in this country, whereas Islam is—if I can use my Welsh experience from being a Member of the other place—as diverse as Christianity in Wales, which is about as diverse as it comes.
With great respect to the noble Lord, if he is to criticise Prevent then he should be specific about which of its programmes he is criticising. I have spent a great deal of time watching Prevent; going to programmes  in its field, listening to those who conduct them and talking to people in the communities in which they operate. I have observed that Prevent is, on the whole, regarded pretty positively, as achieving a great deal. Above all, it achieves the deradicalisation of children who might otherwise spend most of their lives in prison if they were to fulfil the ideation which led them into Prevent.
I know that there are figures, which I accept completely, showing that many—even the majority—of those who are referred into Prevent are not, in the end, shown to be appropriate for its programmes. But what do the police do? They stop people in the street; they arrest them; they question them in an aggressive way; and they are often wrong in their suspicions. Finding the people who commit offences involves talking to an awful lot of other people. Prevent actually does achieve considerable success in finding those young people who are being radicalised, often in private, in their rooms, over the internet—a very difficult area in which to operate.
It is unfair to criticise Prevent in the way in which the noble Lord, Lord Stunell, did. It has been suggested that it could be replaced by something else, but that would look awfully like Prevent, whatever you called it. If you called it “Cuddles” it would still receive exactly the criticisms which are made of it as Prevent. It would achieve nothing. If we abandoned Prevent, then terrorist acts which we have been able to avoid as a result of that policy would happen. I admit I played a part in it, so I may be somewhat biased towards it. Noble Lords have been talking about bias this afternoon and I accept the accusation of apparent bias as  a possibility. However, I believe that Prevent has demonstrated that it has been successful, since it was adopted by the Government in which the noble Lord was a Minister. If it had not been, why did they not abandon it before 2015?

Lord West of Spithead: My Lords, I have been involved in the Prevent programme since 2007. It is like the curate’s egg: some parts of it have been successful, some not. It is almost impossible to imagine that we would not have had such a programme. It was absolutely necessary to do it because, in the final analysis, terrorism is a generational thing and the only way to defeat it is by attacking those areas of belief and behaviour. It is, therefore, probably the most important strand, but we found it the most difficult one and there is no doubt that some areas of it failed and did not do well. We therefore need to improve it. The amendment is unnecessary because, as the noble Lord, Lord Carlile, said, if the Prevent oversight board is doing its job it should do these things. However, we need to look at how we can make Prevent better.

Lord Hylton: My Lords, I agree with the noble Lord, Lord Carlile, that Muslim communities in this country are extremely diverse. They come from many different countries and backgrounds. Within them, there are many points of view, theological opinions and so on. Having said that, I can give some indirect evidence on this matter. I am a trustee of an English charity which, for the last 12 to 13 years, has been  working with Muslim communities up and down this country. It has helped them to build bridges with all levels of authority, from local authorities up to the Home Office. It has tried to give them greater self-confidence in dealing with authority. However, the evidence is that, over this period, the Prevent programme has made relationships much more difficult. I think that it is a question of perception. The existence of the programme and the way in which it has been administered have led many Muslims to feel that they are being discriminated against and that the weight of government is falling on them disproportionately.

Baroness Williams of Trafford: Does the noble Lord agree that it would possibly be better to talk about this in the next amendment? This amendment is about transparency of data. If he wants to talk about it now, I am perfectly happy to hear what he has to say, but it is actually the subject of the next amendment.

Lord Hylton: I will conclude what I was saying. I believe that this amendment is modest and necessary and will be helpful. It will provide statistics with which future judgments can be made, so I support it.

Lord Kennedy of Southwark: My Lords, this issue was raised by the noble Lord, Lord Stunell, in Committee and again today on Report. As he told the House previously, in 2016-17, 6,093 people were referred to the process, but only 6% of them were referred to a Channel programme. The ethnicity and religion of those who are referred are missing from the data. That omission denies the Minister, officials and others important and valuable data.
The noble Baroness, Lady Williams of Trafford, was clear in Committee that the Government wholeheartedly agreed with the intent of the amendment, but she was not convinced that it was needed to achieve the intention. When she responds, will she update the House on the work that is being done by the Home Office chief statistician, who, we are told, is looking at this issue?
To conclude, I support the aims of the amendment. It will provide valuable information for the Government. It would be welcome if the Minister could update the House on whether what has been asked for could be done through other means.

Baroness Williams of Trafford: My Lords, I thank noble Lords who have spoken to this amendment, particularly the noble Lord, Lord Stunell. I will be happy to update the House on some of the work that is going on. The Government agree wholeheartedly with the principle that activities under the Prevent strategy are made as transparent as possible.
The noble Lord, Lord Carlile, mentioned the Prevent oversight board. I am pleased to hear that it met just the other day. However, there is great interest in the operation of the Channel programme, and the publication of statistics on it has already added to that transparency, dispelled some of the myths which surrounded its operation, and provided useful substance to debates in this House. We have so far published data on referrals  to Prevent, and the progress through the Channel system of those referrals, covering in detail 2015-16 and 2016-17 and, in lesser detail, the previous years from April 2012. The latest set of statistics, covering 2017-18, was published last week.
The published data covers the numbers at different stages of the process from initial referral, through discussion at Channel panel, to the provision of support. It includes, among other things, the type of extremism which led to the referral; the age, gender and regional location of the person referred, and the sector which made the referral. It also looks at how successful the programme is.
The data is still at a relatively early stage in its development and is therefore classed as experimental statistics. Feedback from users is very important as the dataset develops, and it is clear from noble Lords’ comments that additional categories of data, such as the religion and ethnicity of those who are referred—as the noble Lord, Lord Stunell, said—would be a welcome addition to the current set. As I indicated in Committee, working through the Home Office chief statistician, we would be happy to explore including this data in future publications. At this stage, that would depend on the quality and completeness of the data.
I mentioned in Committee that currently at least half of the records supplied to the Home Office do not include ethnicity or religion. The publication of such variables could therefore be misleading at this stage. There will clearly be more work which officials can do to ensure that this data is captured and recorded in an accurate and nationally consistent manner.
I return briefly to a point raised by the noble Lord, Lord Stunell, in Committee. He was interested in whether referrals made by the police were more or less likely than others to end up being discussed on Channel panels and offered support. I promised at the time to look at the underlying data to see if such an analysis were possible, and I am happy to confirm what my noble friend Lady Barran said on that occasion—that this data already forms part of the published data set and can be found in accompanying tables available on the GOV.UK website.
On the understanding that the Home Office chief statistician is looking at the issue raised in this amendment, I hope the noble Lord will be happy to withdraw it.

Lord Stunell: I thank the Minister and other noble Lords who have contributed to the debate. I am glad that neither she nor I believe that Prevent is beyond improvement after the magic year of 2015, despite what the noble Lord, Lord Carlile, imputed to me. I am very grateful for her words of encouragement. The key issue here is the perception referred to by the noble Lord, Lord Hylton, and the widespread misapprehension, as the Government see it, by the minority community of what Prevent is and does. The best way to overcome that is to have more transparency and information. I welcome what the Minister has said today and therefore beg leave to withdraw the amendment.
Amendment 31 withdrawn.

Amendment 32

Moved by Lord Kennedy of Southwark
32: Clause 19, page 22, line 2, at end insert—“(8) The Secretary of State must, within the period of 6 months beginning with the day on which this Act is passed, make arrangements for an independent review and report on the Government strategy for supporting people vulnerable to being drawn into terrorism.(9) The report and any recommendations of the review under subsection (8) must be laid before both Houses of Parliament within the period of 18 months beginning with the day on which this Act is passed.(10) The laying of the report and recommendations under subsection (9) must be accompanied by a statement  by the Secretary of State responding to each recommendation made as part of the independent review.”

Lord Kennedy of Southwark: My Lords, this is an issue that we debated in Committee when an independent review of Prevent was called for. The Prevent programme introduced by the Labour Government in 2003 has undoubtedly done much valuable work. My moving of this amendment should in no way be seen as not recognising that fact. As when we last debated this issue, I pay tribute to all those who work to keep us safe, to divert people away from a life of terrorism and to support people who contribute positively to the community. We should all recognise the good work that has been done. I am not aware of any specific problems that give rise to concern, but that does not in itself negate the fact that it is good practice to review matters.
The amendment does not specify who should carry out the review. I would be happy for it to be placed under the remit of the Independent Reviewer of Terrorism Legislation. It seems preferable to do that rather than appoint another person to carry out the review. Prevent has not been the subject of an independent review; I very much believe that the programme would benefit from that sort of oversight.
Clearly, questions have been raised over the programme’s operation and effectiveness. Some are justified, but other criticisms have been stirred up deliberately to undermine the programme. I see my amendment calling for review not as seeking to undermine the good work that has been done but as a sound, sensible, careful look at an area of policy and a programme that deals with matters of the utmost concern to the country as a whole and to individual communities.
In addition to the review, my amendment calls for a report to be laid before Parliament within 18 months of the Bill becoming an Act, and for the Secretary of State to produce a statement to accompany the report. I beg to move.

Lord Anderson of Ipswich: My Lords, we should have pride in the achievements of the many excellent people who work locally in Prevent, and in the increased transparency that has been a notable feature of the past few years. I have in mind not only the helpful publication of statistics but recent initiatives  such as the staging in the West Midlands of simulated Channel panel meetings through which outsiders have been brought in to witness the process of decision-making.
As the noble Lord, Lord West, has indicated, triumphalism about the successes of Prevent would be quite out of place. In its report last month, the Intelligence and Security Committee noted that the failure to pick up attack planning by the Parsons Green tube bomber, Ahmed Hassan, despite him having been an active Channel case, highlighted what the committee called,
“deep-rooted issues in the administration”,
of Prevent. Assistant Commissioner Neil Basu described Prevent in an interview this February, when he was senior national co-ordinator for counterterrorism, as “hugely controversial”. He went on to say:
“Prevent, at the moment, is owned by the Government, but I think it should be outside central government altogether ... Rather than the Government handing over a sum of money and then it becoming state-sponsored with accusations of demonising communities, it should be locally generated. We have gotten all of that messaging the wrong way around, it should be grassroots up”.
I mention this to encourage noble Lords to avoid complacency on this subject and because the Minister quite rightly expressed in Committee her strong respect for Mr Basu’s views. Perhaps it shows that the best of us are not monolithic in our views; with great respect to my noble friend Lord Carlile, that is true also of the noble Baroness, Lady Warsi, whose recent book is both nuanced and constructive in its approach.
The legitimate questions raised by Mr Basu could be multiplied: how should Prevent relate to other safeguarding mechanisms on the one hand and to the Government’s Counter-Extremism Strategy on the other? How robust are the mechanisms for measuring success? To what extent should concerns derived from Prevent contacts be shared with counterterrorism police and others? Decisions as to the future direction of Prevent are of course for Ministers. It was encouraging to hear from my noble friend Lord Carlile that the Prevent oversight board might be showing signs of renewed life. But independent review of the operation of Prevent by a security-cleared person, based on the widest possible engagement with those affected, could help to inform those decisions. It could also provide much-needed public reassurance about an initiative which is so hotly debated that it has been described as “5% of the budget and 85% of the conversation”.
As Mr Basu said in February:
“Government will not thank me for saying this, but an independent reviewer of Prevent … would be a healthy thing”.
I agree, and I hope your Lordships will too.

Lord Carlile of Berriew: My Lords, I do not disagree with much of what has been said by my noble friend Lord Anderson. However, I have some concerns about a proliferation of independent reviewers. My suggestion to the Government is that, if there is to be an independent review of Prevent, it should be done by the new Independent Reviewer of Terrorism Legislation who I understand is about to be appointed. After all, Prevent is part of the four-strand counterterrorism policy; it seems logical that the independent reviewer should be able to consider all strands of that policy. My only reservation would be if there were serious national  security implications of any such review. That said, all independent reviewers have had to be “subtle and nuanced”, to adopt a phrase from my noble friend, about national security issues. This has been taken into account in the production of all reviews.
Of course I accept that Prevent is not a perfect policy. All policies can be improved, particularly in counterterrorism. If it would give greater confidence to the public, or rather—as I suspect the public are not too worried about this—if it would give greater confidence to those who spend a lot of time in the Palace of Westminster and the couple of square miles around it, then I see no disadvantage in an independent review being carried out by somebody already vetted and expert on counterterrorism policy as a whole.

Lord Harris of Haringey: My Lords, it is a pleasure to follow two distinguished reviewers of counterterrorism legislation, who more or less agreed with each other. My first realisation of how pivotal the Prevent strand is came when I chaired a focus group with mothers who were concerned that their children were being lured into radicalised behaviour. They were pleading for there to be somewhere where their children, mainly male in that group, could be referred to be helped through the process and not end up as radicalised and potential terrorists. They had huge concerns that if they raised their fears about their sons with the police, the next thing that would happen is that their doors would be kicked in at four in the morning and the young person would be taken away and interrogated, and goodness only knows what would happen after that. Those mothers were also concerned about whether there were routes within their own communities for dealing with such cases and they felt quite strongly that they were none. They did not have a solution: they simply pleaded for something to be found to help them in that situation. That is one of the strongest cases that I have heard as to why this work is so important.
Having said that, there was a desire for alliteration to have four Ps when the Contest strategy was created and, in hindsight, that the Prevent strand was included was not entirely helpful. The core of Prevent is safeguarding. We have no qualms about safeguarding young people from sexual abuse, about safeguarding those who are vulnerable or have mental health issues, nor of finding ways to steer young people away from gang-related activities—we do not necessarily know how to do it but we know that it is a good thing to do—and we have no qualms about trying to steer people away from becoming addicted to dangerous drugs. Why should we have any qualms about steering young people—or indeed anyone—away from engagement in radicalisation and in terrorism? The problem has been that it is seen as too closely linked to the counterterrorism policy and the alliteration of the four Ps.
We should be quite clear that counterterrorism is important. It has to be addressed in this way and the Prevent programme has not always been as effective as it might have been in individual cases. Again, I remember 12 years ago—I cannot recall exactly when: I would have to check my diary—visiting two Prevent projects  in London in adjacent London boroughs. They had similar mixes but took completely different approaches, for no obvious reason. In one, it appeared that if someone was referred to the programme, a large, burly police officer would go around and try to talk them out of it, which, frankly, will not produce the most effective results. There was an issue, particularly at the beginning and perhaps less so now, of quality control in the way in which some Prevent activities have been taking place.
We should also recognise that the fact that Prevent has such a difficult reputation is not entirely accidental. It is not entirely the consequence of that variability in the style but because some organisations and individuals have desperately tried to traduce it and make it appear more sinister than it is—for whatever reasons we can only speculate, but that is what is happened.
My noble friend’s amendment is important not necessarily because we will end up with something very different, but we need to look at those quality control issues, to establish that it is being done as well as possible, and we need to emphasise that the mission is safeguarding and protection of the individual rather than being part of the counterterrorism machinery which necessarily leads people to conviction and imprisonment.

Baroness Jones of Moulsecoomb: My Lords, we are coming at this from slightly different directions, which is very healthy in a debate. My concern is twofold. Prevent sometimes has a corrosive impact on communities; I am also extremely concerned about its impact on civil liberties and the right to freedom of speech.
The principle of Prevent is good but it is a curate’s egg. If we did not have it, we would have to find something similar. Getting early intervention and helping people to avoid going down dangerous paths is an excellent idea, but there have been too many horror stories. I am sure noble Lords have heard many of them. There is a video on social media about an eight year-old boy who was quizzed by police about whether his father taught him about the Koran. He was terrified and could not understand. When the police asked a direct question—“What does your dad teach you?”—he responded, “Maths”.
Then was a Guardian report that a teenage anti-fracking campaigner had been referred to the Prevent strategy to check on whether they had been radicalised. In fact, the person had nothing to do with anti-fracking, but that description had been used to cover up the real group that had tried to influence him, so valid protests against fracking were linked with dangerous terrorism, which again is a real problem for civil liberties. A Green Party member in Doncaster had a friendly visit from the police citing Prevent because they had submitted online criticism of British foreign policy in the Middle East.
Those events are state intrusion into people’s thought processes and freedom of expression, and are deeply wrong. Therefore, an investigation or inquiry to see where Prevent has gone wrong and where it can be put right is the only way forward. I put the question to the  Government in Committee and I ask it again now: what do they have to hide? If Prevent really is as fair and effective as the Government claim, a thorough, independent review would prove that point once and for all.

Lord West of Spithead: My Lords, it is interesting that eight years ago today, Mohamed Bouazizi set fire to himself in Tunisia kicking off the Arab spring, which brought devastation to the whole of the Middle East and dramatically increased the number of terrorists. It is appropriate that we are discussing a counterterrorism Bill, because this is such an important issue.
I have some sympathy for my noble friend Lord Harris’s safeguarding comments. There is no doubt that the alliteration was very useful. I the four Ps a useful reminder when talking to the media at the time, and there is no doubt that there is a strong element of safeguarding within the Prevent strategy. But as I have said, Prevent is a curate’s egg. Some bits have done very well and some bits have not. It has not hit the right places. There is no doubt that there has been traducing of it by some people, which is unfortunate, but of the four strands, the reality is that Prevent is probably the most important in the final analysis. I had the other three firmly under my control when  I was in the Home Office, but not Prevent. It was separate, which is unfortunate because it is such an important strand. The way that I believe we will finally defeat terrorism is by getting this right.
Therefore, it is important that we review what is going on. I strongly support the amendment. It is absolutely appropriate that we have a review and I agree with the noble Lord, Lord Carlile; I am not quite sure how the review should be undertaken and by whom, but the Government should consider it. I am certain, however, that we should have a thorough review to look at this before we move forward.

Lord Stunell: My Lords, I support the amendment. We have rehearsed this issue at each stage of the Bill and I remind the House that a wide range of external organisations share the view that there should be a review. We heard from the noble Lord, Lord Anderson, and now from the noble Lord, Lord Carlile, that such a thing might add value. The Government have struggled to resist the reasoning put forward. The bottom line seems to be that the Government do not want a review and it is extremely difficult to penetrate why that might be when one looks at the advantages that flow from having one.
It is important to understand that activity is no guarantee of effectiveness. A lot of work goes on, but how effective is it? We heard evidence from the noble Lords, Lord West and Lord Harris, that it is not uniformly good. Certainly, the impression of those who believe themselves to be the targets of Prevent is that it is not uniformly good. The Minister needs to answer in detail what the Government’s reservations are about any sort of review along the lines of the amendment.
I noted carefully what the noble Lord, Lord Carlile, had to say about the Prevent oversight board. He said that it had not met often enough. Providentially for  his case, it had met in the last week, but he did not  disclose how long before that it last met. If the next meeting is in six months and he thinks that is soon enough, I presume the gap was quite extensive.
I notice that my supposition was, to some extent, supported by the noble Lord, Lord Anderson, who said of last week’s meeting that he was glad the Prevent oversight board was at last showing some signs of life. I hope I am not putting words into his mouth; I think that is what he said. Bearing in mind the qualified support that has come for the Prevent oversight board’s activity and effectiveness, I wonder whether the Government are really satisfied it is the right vehicle for a review, a substitute for a review or gives all the answers that a review would. It seems likely that that is not the case.
Other specific concerns have come to light since our previous debate. I have been approached by an outside organisation that, until this year, was a provider of Prevent projects to those who had been referred. It pointed out to me that it has now been superseded, at short notice in its opinion, by a private provider. It alleges that there is no effective procurement policy for those programmes. Far too often, it appears to depend on the knowledge and contacts of a Prevent co-ordinator, rather than a rigorous management process. I hope the Minister will be able, at least in principle, to give some reassurance on that. To help her in giving that reassurance, could she say something about the proportion of projects that are delivered through NGOs, the proportion delivered through private companies and the proportion delivered through local authorities or other public services directly? Have those proportions changed over the last four or five years, as my informant alleges? If there has been a change, was it cost-driven or based on an evaluation of whether particular projects were the wrong part of the curate’s egg, and were therefore dropped, or were too expensive for the results?
All of this raises the question of what results and criteria are being used in allocating, renewing or discontinuing such contracts. Surely evaluation is a key part of that; therefore, review of the process seems all the more necessary. I hope, for all the reasons that have been rehearsed, not least that one, that the Minister is able to accept this amendment today.

Lord Marlesford: My Lords, Prevent is an important part of the Government’s anti-terrorism strategy. We have heard about a number of problems relating to it, which have been there for a while. I am persuaded that it is therefore sensible to review the policy and see whether it should be changed, replaced or whatever.
The noble Lord, Lord Stunell, said could not understand why the Government were resisting this idea. I can tell him exactly why. It is because the Home Office ploughs on regardless. Even when the tractor’s wheels are stuck in the mud, they go on spinning. That is why the Home Office needs constant help in knowing when things should be reviewed. I strongly suggest that my noble friend tears up the brief that says “Don’t review” and says, “Yes, we’ll look at it”.

Baroness Warsi: My Lords, with the leave of the House—and I have spoken to both our Front Bench and the clerk—I will refer slightly to the last  amendment, which does actually refer to the current amendment. I was in the Chamber when this amendment was called.
I want to put a couple of things on record—first, my views on Prevent. I have written about this extensively. I will not plug the book, but it is available on Amazon. In that book, I talk about Prevent in detail. I talk about how, when the policy was started in 2003 and first published in this iteration in 2006, I supported it. It was effectively an upstream intervention into areas where we felt we could intervene, predominantly with young people and British Muslims at that time, although we are increasingly dealing with far-right extremism now. We were predominantly intervening with young people who may be attracted into terrorism. How could anybody disagree with that principle?
In my book—and this is the issue that I raised with the noble Lord, Lord Carlile—I work through the various iterations of Prevent. It has changed from what it was in 2003 to what it is now in 2018. It started as a policy specifically designed to be run as an internal discussion within communities of what could be considered to be extremist views. It was supposed to be a genuine, non-criminalised safe space and a battle of ideas—something I fundamentally supported—but it became a policy that was done not by the community but to the community. This is an issue I have consistently raised: what the policy became and the way it was then implemented; the level and quality of training, the material being used, the way it was implemented in different schools and differently across different communities. All of this—with 100 pages of citations if that helps the noble Lord—is detailed in the  book, because it was important to say clearly that a principle of policy that I supported has, over time, become fundamentally flawed in its implementation and lost the trust of the communities we were trying to influence.
As a British Muslim parent whose children are likely to be vulnerable and to be approached by those who want to lead them astray, whether into extremism, terrorism or elsewhere, I would be the first in line to say this policy needs to be supported. But I do not want a policy on our books, which has statutory basis, which is badly implemented.

Lord Carlile of Berriew: I read the noble Baroness’s book with great interest and I am glad to see that she is now taking part in our debate. Does she not agree that the iterations she describes in her book show the progress from a Prevent strategy run by the police to one now not run by the police? All the best examples of Prevent are run by NGOs, private sector groups or local authorities. The police are involved in Prevent only when there is evidence of an offence having been committed. Is that not real progress, which we ought to laud and welcome, in the changes to Prevent? I expect to agree with the noble Baroness on this point.

Baroness Warsi: As the noble Lord is aware, I took part in the Bill’s Second Reading debate and made my views clear to the Minister and to many colleagues in the House, publicly and privately. My views on this are on record and, when we vote, I will make them clear.
As I have said, it is not so much a question of who delivers Prevent—the police or third-sector organisations —but that it is delivered so that the communities trust the policy. It is clear that, as it stands, British Muslim communities do not trust Prevent. Therefore, as somebody who supports the principles behind it, I feel it is appropriate and entirely right to have an independent review. We are not asking for Prevent to be forgone completely. Many Members of this House are saying we should keep the good bits.

Lord West of Spithead: Perhaps I may say to the noble Baroness that it is not that every part of the Muslim community has no trust in Prevent. I am not aware of that, and I have been involved in it for quite a long time. Certainly, there are sections which have real problems with it and that needs to be addressed, but there are also sections which are pleased that this work is being done. Does she agree that that is correct?

Baroness Warsi: That is the point. When Prevent has been applied correctly and has been led by and with the community, it has made real progress. When you speak to practitioners on the ground—those who have ignored much of national policy; those who have ignored the rules on engagement and disengagement with British Muslim communities and have spoken to whom they want, when they want and how they want—you find that they have built really strong relationships which have allowed sections of the policy to be implemented properly.
Even if you speak to officers like Mr Neil Basu, who was referred to earlier, he himself will say that the biggest challenge for the police has been operating Prevent within a policy of disengagement with British Muslim communities whereby more and more individuals and organisations are simply seen as beyond the pale and are not engaged with. There is a challenge when large sections of the British Muslim community are disengaged and distrustful of a policy that will not be independently reviewed. I can tell my colleagues in government that if it were independently reviewed, it would enjoy more support and therefore would be more effective.
The noble Lord suggested that I believe that the British Muslim community is monolithic. I say to him as someone who is a Muslim and now 47 years of age that I am acutely aware that the British Muslim community is not monolithic. If he would care to read the first four pages of chapter one of my book, he will see that I explain that British Muslim communities are black and brown and Asian and Persian. They come from all over the world and have different theological beliefs and practices. They dress, eat and behave differently. He would then realise that I am a huge advocate of a diverse British Muslim community from many backgrounds. It is therefore wrong of him to attribute to me on the Floor of this House something which I have simply not said.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken in this debate. As the noble Lord, Lord West, has said, the Prevent programme  is one of the core pillars of the strengthened Contest strategy which was published in June of this year. The strategy was developed taking into account views across the breadth of delivery. The Prevent programme serves as a key pillar in our response to the heightened terrorist threat we face now and in the coming years.
The programme is designed to safeguard and support those vulnerable to radicalisation, both on the far right and Islamist, as my noble friend Lady Warsi said. It is designed to stop them becoming terrorists or supporting terrorism. As the noble Lord, Lord Harris of Haringey, said, we should have no qualms about doing so, just as we should safeguard them from sexual exploitation. That point is often forgotten but it is very pertinent. The noble Baroness, Lady Jones, expressed her concern about freedom of speech and civil liberties, but terrorism is an infringement of civil liberties of the severest type. I am also sorry to disappoint my noble friend Lord Marlesford, but the Government remain firmly of the view that an independent review of Prevent of the kind envisaged in this amendment is not necessary at this time. Perhaps I may take a few moments to explain why.
As has been said, Prevent is a safeguarding programme that works. The Mayor of London, Sadiq Khan, has described how Prevent is the only show in town and the intention is to help those who are vulnerable and are being targeted and exploited by radicalisers. Sir Rob Wainwright, the former head of Europol, has described Prevent as the,
“best practice model in Europe”,
for tackling extremism.
In Committee I outlined how Prevent was not the beginnings of state surveillance, as it has been portrayed sometimes; rather, it is a locally driven programme that works with communities to deliver resilience-building activity and prevent some of the most vulnerable in our society becoming terrorists or supporting terrorism. In Committee the noble Lord, Lord Carlile, challenged a number of noble Lords to identify a specific local Prevent project which had given rise to concerns. It was very telling then, as it is now, that no noble Lord has yet identified such a project. The noble Lord talked about how private and public NGOs are now working on Prevent projects. Moreover, to answer the question put by the noble Lord, Lord Stunell, about the proportions being delivered by each, while I do not have the exact numbers, perhaps I may write to him.
While Prevent is successful at safeguarding individuals from becoming radicalised, it is not always well understood. I agree with the point made by the noble Lord, Lord West, about promoting the safeguarding aspect of Prevent. It also supports partners to run a programme of engagement events with their communities. These events seek to engage members of the public and provide opportunities to hear at first hand from practitioners and community organisations about Prevent delivery, as well as acting as an open forum for discussion about its implementation. Further, Prevent does not target any one group, as is often said. It helps to address the growing and pernicious threat from the far right and to provide support for those referred due to concerns about Islamist extremism, among a range of other extremist beliefs. Indeed, the latest statistics,  published just last week, show that of those individuals who received Channel support in 2017-18, near equal numbers were referred for concerns relating to far right extremism and to Islamist extremism.
On the positive impact of Prevent, I would remind the House of what Cressida Dick, the Commissioner of the Met police, said in June in evidence to the Home Affairs Select Committee.

Lord West of Spithead: Everything the noble Baroness is saying supports the importance of Prevent, which I think all noble Lords would agree with. That is not really the issue. What we are saying is that, given that it is really important, does it not make sense to have a review to look at whether we can make it even better?

Baroness Williams of Trafford: If the noble Lord will indulge me, I was about to explain how the Prevent programme is evolving and being scrutinised, including through Contest. Perhaps I may go back to the comments made by the Commissioner of the Met:
“There is an awful lot of very, very good work that has gone on under Prevent in relation to all forms of extremism, not forgetting extreme right-wing, which takes up a big part of it. There have been hundreds of people who have been turned away from violent extremism by their engagement with Channel and other aspects of Prevent, and that is all positive”.
Prevent is not about restricting debate or free speech, as the noble Baroness, Lady Jones, might suggest. On the contrary: as the Government have said previously, schools ought to be safe spaces in which children and young people can understand and discuss sensitive topics, including terrorism and extremist ideologies. An independent study of education professionals found that almost three-quarters of them believe that the Prevent duty has not stifled classroom discussions of extremism, intolerance and inequality.
Since it was launched in 2011, Prevent training has been completed more than 1.1 million times to enable front-line practitioners, including teachers, to recognise the signs of radicalisation so that they know what steps to take, including, where appropriate, how to make a referral to Channel. This has positively supported teachers in discussing the risks of radicalisation with those in their classes. To our knowledge, no event or speaker has ever been cancelled or banned as a result of the Prevent duty. It is about upskilling individuals, not curtailing them. The Government believe that it is imperative that young people learn how to challenge dangerous beliefs which are all too easily accessible online. Since February 2010, some 300,000 pieces of illegal terrorist material have been removed from the internet.
In addition to the examples of increased transparency that I outlined in Committee, which included the annual publication of Prevent and Channel data and increasing the number and geographical reach of community round tables, there is increased cross-party engagement, led by the security Minister. Also, as mentioned earlier by the noble Lord, Lord Carlile, on 28 November the Home Secretary chaired the latest meeting of the Prevent oversight board, which brings together other Secretaries of State, operational partners and independent members to review delivery and to   provide the strategic challenge noble Lords have talked about. I therefore understand the concerns of noble Lords.

Lord Stunell: Is the Minister able to tell us when the preceding meeting of the oversight board was held, and what the gap was?

Baroness Williams of Trafford: I am not, but I suspect the noble Lord, Lord Carlile, can.

Lord Carlile of Berriew: I can. The previous meeting—and the noble Lord is making a fair point—took place 18 months previously. During that period, I for one requested meetings take place on a regular basis. At least two meetings were cancelled during that time, dates having been set and put in diaries. I happen to be a member of the Prevent oversight board, so I am aware of the calendar. One of the points made at the most recent meeting was that, if the board is to be effective, it must meet more frequently. One of the reasons why there was such a long delay—and the noble Baroness may confirm this—was because it had been established that the Prevent oversight board should be chaired by the Home Secretary. That has been a difficulty, but on the most recent occasion, if I remember rightly, the Home Secretary and the Lord Chancellor were present, along with a number of other Ministers.

Baroness Williams of Trafford: I thank the noble Lord, Lord Carlile, and I think that is right. If this debate has done nothing else, it has probably given the impetus to ensure the oversight board meets more regularly, and I shall take that back.
There needs to be evidence of systemic failures to justify a review. I will take back the point about the oversight board meeting more often. Prevent should be subject to proper scrutiny, but I hope I have already outlined a number of mechanisms for this. It is also open to the Home Affairs Select Committee to conduct an inquiry into Prevent, should it wish to do so. Furthermore, the fifth anniversary of the passage of the Counter-Terrorism and Security Act 2015 does offer the opportunity to undertake the normal pre-legislative review of the provisions in Part 5 of that Act, providing the legislative framework for Prevent.
I hope my explanation has provided some comfort to noble Lords. I suspect by the gathering crowds it has not.

Lord Carlile of Berriew: I am sorry to interrupt again, but can the Minister also deal with the point made by the noble Lord, Lord Marlesford? It was suggested that the Home Office contains officials who do not really focus on Prevent. Could she confirm there is a strong Prevent group within the Home Office, chaired by an experienced and competent person who does a great deal of conceptual thinking in this area and is open to discussion with any Member of your Lordships’ House who shows some understanding of this issue and cares to discuss it with him or his team, which is now frighteningly large?

Baroness Williams of Trafford: The noble Lord is absolutely right, and that team is growing. I think my noble friend Lord Marlesford is concerned about the Home Office in general, but I can confirm what the noble Lord, Lord Carlile, says.

Lord Kennedy of Southwark: My Lords, I thank all noble Lords for their contributions to the debate today, in particular the noble Lord, Lord Anderson of Ipswich, my noble friend Lord Harris of Haringey, my noble friend Lord West of Spithead, and the noble Baroness, Lady Warsi. These are serious matters, and counterterrorism work in all its strands is important to keep us safe, and we support the Government to do that. It is also important that these things are looked at independently, and as I said in my opening contribution, I am happy for this review to be undertaken by the independent reviewer.
I note what the noble Baroness said about the amendment as drafted, but other than saying there should be a review, it is fairly open on how it takes place. I did not see why that caused the Government particular problems. I have listened carefully to all of the contributions, and to the response of the noble Baroness. Although I have great respect for her, I am not persuaded by her response, and so I wish to test the opinion of the House.
Ayes 214, Noes 196.

Amendment 32 agreed.

Amendment 32A

Moved by Lord Anderson of Ipswich
32A: After Clause 20, insert the following new Clause—“Amendment to the criteria for proscriptionFor section 3(4) of the Terrorism Act 2000, substitute—“(4) The Secretary of State may exercise the power under subsection (3)(a) in respect of an organisation only if—(a) he or she is satisfied, on the balance of probabilities, that it is or has been concerned in terrorism; and(b) he or she reasonably believes that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for the organisation to be proscribed.(4A) For the purpose of subsection (4), the public includes the public of a country other than the United Kingdom.””

Lord Anderson of Ipswich: My Lords, the amendments in this group have their origins in a fact admitted by the Government, published in more than one of my reports as Independent Reviewer of Terrorism Legislation and, I am afraid, mentioned more than once to your Lordships: at least 14 of the 74 organisations proscribed under the Terrorism Act 2000, not including the 14 Northern Irish groups, are not concerned in terrorism and therefore do not meet the minimum statutory condition for proscription.
The question is: what do we do about that mismatch between law and practice? The pertinence of that question is greatly increased by the fact that a major theme of the Bill is to widen the scope, both substantive and geographical, of the proscription offences—membership, inviting support and so on.
Amendment 32B was designed to apply the law we have, by providing for an annual review of the activities of proscribed organisations—as happened routinely until four years ago—and the de-proscription of those lacking a statutory basis for continued listing. That principled course was chosen by Theresa May, as Home Secretary in 2013, when the irregularity was brought to her attention. With Amendment 32B, action on the conclusion of such reviews would be required  by statute and could not be defeated by Foreign Office policy priorities, as was the case on that occasion, and indeed previous ones, judging from my noble friend Lady Manningham-Buller’s speech in Committee.
Since that seemed not to be enough, I tabled Amendment 32A in an attempt to make things easier. This would allow organisations to be proscribed if they are or have been concerned in terrorism, so long as the Secretary of State reasonably believes it necessary for purposes connected with protecting members of the public from a risk of terrorism.
That two-stage formulation is tried and tested. It was used in the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011. It would allow the continued proscription of groups which have a powerful history and terrorist brand, but in respect of which ongoing terrorist activity cannot be demonstrated. This could be particularly useful in Northern Ireland, where groups that have laid down their arms do not satisfy the current test but, depending on the Secretary of State’s assessment, could satisfy the new one. More fundamentally, it would have the merit of ensuring that the Government’s actions in relation to proscription are in accordance with the law; currently, they are not. This would be a useful example to set the rest of us.
I convey to the House the apologies of the noble and learned Lord, Lord Judge, who has had to leave his place and I beg to move.

Lord Paddick: My Lords, I rise to support  the amendments in the name of the noble Lord, Lord Anderson of Ipswich, to which I have added my name. I really am intrigued to hear what the Minister will say about the fact raised by the noble Lord that at least 14 organisations still proscribed by the Government are not involved in terrorism and are therefore effectively proscribed illegally. The noble Lord’s amendments are designed to rectify that situation, requiring the Government to take action once a review has determined whether organisations currently proscribed should be proscribed or not.
It is not just a question of the organisations themselves; going back to previous measures in the Bill, anybody who supports these organisations could be convicted of a criminal offence, even though they are supporting an organisation that should not legally be proscribed. I am also very interested to hear from my colleagues on the Labour Front Bench why they would not support these amendments were the noble Lord to divide the House. We certainly would support him were he to test the opinion of the House.

Lord Carlile of Berriew: My Lords, the first thing to say is that organisations can apply to be de-proscribed; that should be on the record in this part of our debate. As I understand it, only one organisation has applied to be de-proscribed in recent years: the People’s Mujahedin of Iran. It was de-proscribed. The decision before the Proscribed Organisations Appeal Commission, or POAC, was contested on appeal by—

Lord Anderson of Ipswich: I did not mean to interrupt the noble Lord mid-sentence but, on a point of information, the Minister may like to confirm that   at least two other organisations have applied to be de-proscribed: the International Sikh Youth Federation and the Red Hand Commando in Northern Ireland. De-proscription of the International Sikh Youth Federation was achieved when the Home Secretary failed to defend the legal proceedings. I know nothing about the progress of the application from the Red Hand Commando and it would be helpful if the Minister could enlighten us.

Lord Carlile of Berriew: I am very grateful to my noble friend, who is more up to date than I am. My understanding is that the only fully contested application was from the People’s Mujahedin of Iran, which won in front of POAC. The Government appealed and the Court of Appeal issued a judgment comprehensively disagreeing with the Government. The People’s Mujahedin of Iran—or the NCRI, which includes the PMOI—now functions openly throughout Europe, although its leader, Mrs Rajavi, is not allowed by the Home Office to enter the United Kingdom. My noble friend Lord Pannick and I remember this to our cost, because we were involved in a Supreme Court case on that very subject.
There is a method of seeking de-proscription. It is expensive and quite clunky, it has to be accepted. Secondly, I absolutely agree with my noble friend that there may be some organisations that have almost no membership, which do not have the resources to apply for de-proscription, and which individuals would not wish to expose themselves as being interested in by applying for de-proscription on their behalf.
However, there is another point I wanted to mention. This is a very subtle matter, particularly in Northern Ireland. It is very difficult to read the minds of some former paramilitaries, both big and small. For all we know, they may have reasons for wishing to remain proscribed. My concern about Amendments 32A  and 32B relates to the wording of proposed new subsection (6A)(d), which requires the Government to “publish each such decision”. Having been involved from time to time in the area we are talking about, I believe that would potentially raise compromises for national security and undermine the stability of Northern Ireland, if that part of the amendment was required. That said, the addition of the words,
“that it is or has been concerned in terrorism”,
in Amendment 32A, which I understand from my noble friend was tabled in the last fortnight or so, provides some welcome clarity. I will give way, and then I will continue briefly.

Lord Harris of Haringey: I may have misunderstood the noble Lord and I am grateful to him for giving way. If he is objecting to the idea that the decision should not be published, how will somebody know whether an organisation is proscribed or not?

Lord Carlile of Berriew: The last paragraph would remain: a record would have to be placed before Parliament. What I am concerned about is the giving of reasons.

Lord Harris of Haringey: It does not say that.

Lord Carlile of Berriew: In my view, it is implicit in the publication of each such decision that decisions have to be reasonable and therefore subject to reasons. I would not want issues that might affect national security to be included. That is the point I am seeking to make.
I conclude by suggesting that the whole problem raised by Amendments 32A and 32B could be resolved if we were to hear from whichever Minister replies to the debate—I think the noble Baroness, Lady Williams—that the Government accept the principles set out in these amendments and that there is a need for them to be more methodical than they have been in reviewing proscription, and undertake that Ministers will be more methodical and apply the principles broadly set out in these amendments, which in principle I see as unexceptionable.

Lord Garnier: My Lords, it might encourage my noble friends on the Front Bench to do as the noble Lord, Lord Carlile, has indicated. I find the principles behind the amendments in the name of  the noble Lord, Lord Anderson, very attractive. No doubt some practical points need to be sorted out. I am much encouraged by the wording,
“it is or has been”,
in proposed new subsection (4)(a) in Amendment 32A. I fully take on board the concerns a Government might have relating to the publication of the reasons for making a decision under the review of proscription provisions in Amendment 32B. That said, there seems to be, at least as a matter of theory, a lot to commend the amendments from the noble Lord, Lord Anderson. I encourage the Government to see whether something can be crafted that will enable something similar to this to come on to the statute book, not least for the reasons of departmental policy squabbles that those of us who have been in government know so much about.

Lord Kennedy of Southwark: My Lords, this issue was also looked at in detail in Committee. The noble Lord, Lord Anderson of Ipswich, raises an important issue concerning groups that have been added to the list of proscribed organisations and that have, to all intents and purposes, stopped engaging in the activity or activities that led to them being added to the list in the first place and the risk to individuals getting caught up in that.
I have listened carefully to the issues raised in that previous debate and in today’s debate and reflected on them, but I have come to the conclusion that I am not persuaded that the change proposed by these amendments is necessary or right at this time. The first duty of government is to protect the public. As we have heard, the 2000 Act already provides a mechanism for an organisation to seek deproscription: there is detailed in Section 4 and further in Section 5 an appeals process to the Proscribed Organisations Appeals Commission. Further, on a point of law, organisations can go to the Court of Appeal.
I say in response to the noble Lord, Lord Paddick, that there is a process already in place and further, on the points that the noble Lord, Lord Carlile, made  regarding Northern Ireland, I am not persuaded that these amendments are right today. That is not to say that the points raised by the noble Lord, Lord Anderson, could not be considered to be introduced at some point in the future, but I am not convinced on the merits of the case at this time.

Baroness Williams of Trafford: My Lords, these amendments return to an issue raised with some force by the noble Lord, Lord Anderson, in our earlier debates. I am conscious that I was unable to persuade him of my view that the well-intentioned amendment he tabled in Committee would not be in the public interest. I am grateful to him for the further amendment which he has tabled, which would operate in parallel to his original proposal for annual reviews, and which he has explained is intended to address some of the concerns the Government have with that proposal. On careful consideration, regretfully, I cannot agree that it does do so and the Government are not able to support it for reasons I will come to shortly.
Before I come to the detail of the amendments, I should be clear that the Government consider proscription to be a necessary power that plays an important role in protecting the public. Organisations are proscribed for a good reason: because they are terrorist in nature, and because it is in the public interest to prevent them being able to operate or to gain support in the UK. This plays an important role in protecting the public from potentially very dangerous organisations, as well as more generally in maintaining public confidence and, where relevant, supporting our international partners in the struggle against terrorism. The Government also consider that the power’s impact is proportionate to that purpose.
In forming this view I have in mind that, beyond restricting the ability of an individual to engage in the specific activities covered by the proscription offences relating to the particular organisation which has been proscribed, the power does not otherwise impact on their ability to conduct a normal day-to-day life. The impact of proscribing an organisation is not, therefore, overly intrusive or unavoidable from the individual’s perspective.
I do not say this to downplay the impact that proscription can none the less have on certain important rights, in particular those protected by Articles 10 and 11 of the European Convention on Human Rights—the rights to freedom of expression and freedom of association—and nor do I seek to dismiss the concerns raised in this House. There is no question that any such impact must be justified and proportionate in the context of the particular proscription. Rather, I simply and gently urge caution against the risk of overstating the degree of interference with individual rights that arises from an organisation being proscribed, or the inevitability of that interference.
However, I should make absolutely clear that the Government take seriously their responsibilities to ensure that the right organisations are proscribed. We continue to exercise the proscription power proportionately and have due regard to our responsibility to protect  the public from terrorism. The Government’s long-standing approach to deproscription reflects this. We are clear that we will take a precautionary approach to lifting restrictions on a group that the Home Secretary or Northern Ireland Secretary has decided is concerned in terrorism on the basis of intelligence and advice from the police and intelligence services. To do otherwise would be irresponsible.
However, it is absolutely not the Government’s position that once a group has been proscribed that status is fixed for all time. Parliament has provided a clear statutory route for deproscription under Section 4 of the 2000 Act, which allows either a proscribed organisation or a person affected by its proscription to apply to the Secretary of State for it to be deproscribed. Where such an application is received, the Government will consider it carefully. Under this system, three groups have been deproscribed following applications.
The noble Lord, Lord Anderson, talked about the Red Hand Commando. I understand that an application for deproscription of this group has been received by the Secretary of State for Northern Ireland. The progress of that application is obviously a matter for the Secretary of State for Northern Ireland. The noble Lord will appreciate that I cannot discuss details of individual cases, but I am happy to provide a clear commitment that, if the Government become aware of fresh information that casts serious doubt on whether proscription remains appropriate for a given group, it will be given serious consideration irrespective of whether there has been an application for deproscription.
I firmly believe that this is the most appropriate and balanced way to deal with the question of deproscription. This approach avoids placing the public at risk, or causing alarm and distress to the public as a result of a premature decision to lift restrictions on organisations with a significant terrorist pedigree.
I have previously explained—but it is worth repeating—that experience has demonstrated that individuals and organisations with a terrorist mindset can disengage and then re-engage in terrorist activity, potentially without warning. Such individuals and groups will continue to pose a threat, and to be properly characterised as terrorist, during both their fallow and their active periods. It would not, therefore, be responsible for the Government to lift restrictions on the ability of such a group to operate in the UK unless we are confident that they have changed and no longer pose a threat.
Given this approach, I continue to have serious concerns about a requirement for annual reviews of  all proscriptions, which Amendment 32B would introduce. While I appreciate the noble Lord’s intentions,  I do not consider that his proposed solution in Amendment 32A in fact deals with these concerns.
If I may take the amendments out of turn, regarding Amendment 32B I simply do not agree that such a system of formal annual reviews is needed to prevent any injustice or any disproportionate interference with individual rights. I do not seek to argue against the noble Lord’s amendment primarily on the basis that it necessarily has an economic and operational cost attached to it, albeit that is quite properly a consideration.
The proposed system of reviews would be costly and burdensome to administrate, diverting investigative and intelligence resource away from current threats to public safety. The Government must continually take difficult decisions about how best to use the valuable resources of those tasked with keeping us safe from terrorism. It is far from clear that this would be of proportionate use when considered against the nature and comparatively limited extent of the interference with individual rights which I have set out.
I have a more fundamental concern. The approach proposed by the noble Lord would carry a high risk of leading to unintended and highly damaging outcomes which, if it resulted in groups being deproscribed prematurely, would not be in the public interest. As the noble Lord, Lord Carlile, pointed out, this could have particularly difficult implications in the unique and sensitive context of Northern Ireland, given the political and security challenges faced in that part of the United Kingdom, and the historical significance in the Troubles and the peace process of certain proscribed organisations.
Without wanting to dive too deeply into hypothetical scenarios, it is conceivable that a proactive review of the proscription of such an organisation, without the organisation itself or any other person even having sought the review, could have a significant and unsettling impact on the political situation and the peace process, whether its outcome is a decision to reaffirm or to lift the proscription, and indeed, whatever legal test is applied to that decision. I say this without any particular organisation in mind, and without prejudicing the outcome of any review that might occur. I simply wish to express the risks we would be running if we were to go down this road. I hope noble Lords will agree we must be very careful when considering changes to the proscription regime in that context.
In considering Amendment 32B, we must be alive to the fact that paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. In this complex environment, proscription remains an essential tool in the wider strategic approach to tackling the continued and widespread existence and impact of paramilitary groups. Any change to that proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken in Northern Ireland and supported by the UK Government through the Tackling Para- militarism programme. A decision to change the proscription regime in Northern Ireland could not and should not be taken in isolation from this initiative or without detailed prior consultation with the devolved Administration and security partners. As noble Lords will know, the Northern Ireland Assembly is not currently sitting, and there is currently no Northern Ireland Executive, so at present it is not possible to take  views from devolved Ministers who have lead policy responsibility for tackling paramilitary activity.
I recognise that in general it is not a satisfactory proposition to say that we should sit on our hands until this situation resolves itself. But I would argue that, in this particular context, we cannot ignore the wider political ramifications of this amendment. Many of the concerning implications which I have described  also arise in relation to proscription of international terrorist organisations, but they are particularly acute in relation to Northern Ireland-related terrorist organisations.
Amendment 32B would change the legal test for proscription in three substantive ways. First, it would expand the existing test that the organisation is currently concerned with terrorism to include where it has previously been concerned with terrorism. Secondly, it would raise the statutory threshold from requiring the Secretary of State to reasonably believe this to requiring that he be satisfied on the balance of probabilities. Thirdly, it would introduce a necessity limb to the test, so that proscription would have to be necessary for purposes connected with protecting members of the public, whether in the UK or elsewhere, from a risk of terrorism.
The noble Lord, Lord Anderson, has suggested that this will provide an answer to the concerns I have set out, because the new backward-looking aspect of the legal test would provide a clearer basis for the proscription of terrorist organisations which have historically been active but which are currently less so. I am grateful to him for his suggestion, and I appreciate the constructive spirit in which he has brought forward this amendment. But I have to say that, on careful consideration, I cannot agree that it addresses these risks and the impacts. I will explain why.
As I have said, the issue is not simply one of how best to deal with historically significant terrorist organisations which are currently in a fallow period, although that is part of it. Even if it were just that, then I fear that this amendment would not address the issue that the noble Lord intends it to. This is because the backward-looking aspect of the first stage of the test proposed by the noble Lord—the requirement that the organisation has been concerned in terrorism—would in effect be cancelled out to a large extent by the second limb of the test, which would require that it be necessary to proscribe the organisation for purposes connected with protecting the public from a risk of terrorism. Although the amendment does not spell this out, our analysis is that proscription could only be necessary if there is a risk to the public arising from present activity.
This puts us back to square one in relation to the category of organisations the noble Lord has indicated that his amendment is aimed at. That is, where there is extensive evidence that the organisation is terrorist in nature and is properly characterised in that way, and where it is clearly in the public interest for it to remain proscribed, but where there may not be extensive evidence of current terrorist activity.
A further concern is that the amendment would raise the statutory threshold, from requiring the Secretary of State to reasonably believe to being satisfied on the balance of probabilities. I am not persuaded of the need to raise the bar for making new proscriptions or that this would be in the public interest.
Setting this aside, the fundamental issue remains that we would still be making a significant change to the proscription regime, out of step with the relevant devolved authorities in Northern Ireland. And we would still be unnecessarily reviewing organisations in the Northern Ireland context, where to either affirm  or revoke their proscription could potentially have significant political implications. Against the very real risk of unintended consequences in Northern Ireland, I would respectfully suggest that your Lordships should proceed with the utmost caution. The arguments advanced by the noble Lord, Lord Anderson, do need to be balanced against the fact that these are very serious and unpleasant terrorist groups, which have been proscribed with good reason and which the Government are anxious to ensure are not able to pose a resurgent threat to the public.
I have set out the Government’s position at length on these issues. I have given a clear commitment today that the Government do not regard proscriptions as fixed, and that if the Government become aware of fresh information which casts serious doubt on whether proscription remains appropriate for a given group, this information will be given serious consideration. On that note, I hope that the noble Lord feels able to withdraw his amendment.

Lord Anderson of Ipswich: I am grateful to the noble Lords, Lord Paddick, Lord Carlile, and Lord Kennedy of Southwark, and the noble and learned Lord, Lord Garnier, for their interventions, and to the Minister for her response, although its content was disappointing. I will respond briefly to the principal points that she made.
The Minister undertook or indicated that, if it came to light through fresh information that a proscription was inappropriate, then it would be reviewed. She said a lot about balance, discretion and appropriateness, but this really is not the area we are in. We are in the area of a hard legal requirement only if an organisation is concerned in terrorism. Is there even any question of getting into that area of discretion, balance and appropriateness? What these amendments seek to address is the mismatch between what the law requires and what the Government do.
The Minister raised the prospect of organisations that might engage, disengage and then re-engage, and I am sympathetic to that. It is precisely the difficulty I was seeking to address with Amendment 32A. That is the one which, by making it a condition to be concerned or to have been concerned in terrorism, elides and removes that difficulty. I would think it was helpful in addressing the problem to which the Minister referred.
The Minister said that annual review is not needed to ensure justice. I say with great respect to her that the evidence during the past 15 years is that nothing else has a hope of ensuring justice. It is not enough to rely just on the ability to apply for deproscription, because, as we have all heard, very few organisations over those years have applied to be deproscribed and one can understand why. It is very expensive. The PMOI case to which the noble Lord, Lord Carlile, referred cost some £300,000—perhaps that is lawyers for you. Someone has to put their head above the parapet and say that they want to apply. Some organisations for their own reasons might not want to apply. In any event, what comfort is that to the individual who is disrupted or investigated by police for possibly being connected with a terrorist organisation and who would never have been the person who would have applied for deproscription?
The Minister insisted particularly on Northern Ireland, where, like my noble friend Lord Carlile, I have had the privilege of spending a good deal of time over recent years with the security services. Surely at the root of the Northern Ireland settlement is respect for the rule of law. Continuing to ignore the law, which is what the Government are doing and propose to continue to do, is no substitute for enforcing and, if necessary, changing it, as the amendments propose.
The injustice about the law as it applies is that it exposes people in Northern Ireland, Great Britain and, after Clause 6 becomes law, in other countries as well to a range of police and prosecutorial powers in relation to activities that Parliament never intended should be criminal. The names of the groups that do not meet the statutory condition for proscription are not known to me, and I very much doubt that a secret list of them has been provided to police or prosecutors in the United Kingdom or that such a list would be provided to police or prosecutors in other countries. In those circumstances, there can be no reassurance that the law will be properly applied in practice.
I would have liked to divide the House on these amendments, not least because they concern the whole insecure basis on which much of the Bill is constructed—I am thinking particularly of Clauses 1, 2 and 6—but having heard from the respective Front Benches, I suspect that that could be a futile exercise. I shall not press my amendments and hope that, as the noble Lord, Lord Kennedy, and the noble and learned Lord, Lord Garnier, have constructively suggested, they may find favour in another form or on another day.
Amendment 32A withdrawn.
Amendment 32B not moved.

EU Council
 - Statement

Baroness Evans of Bowes Park: My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“Mr Speaker, with permission, I would like to make a Statement on last week’s European Council. Before turning to Brexit, let me touch on two significant conclusions from the other business of the Council. First, we expressed our utmost concern over the escalation that we have seen in the Kerch Strait and the Sea of Azov and Russia’s continued violations of international law. We agreed to roll over economic sanctions against Russia and stand ready to further strengthen our support, in particular for the affected areas of Ukraine.
Secondly, we also agreed to work together on tackling the spread of deliberate, large-scale and systematic disinformation, including as part of hybrid warfare. On this, I outlined some of the world-leading work that the UK is doing in this field. I was clear that, after we have left the European Union, the UK will continue to work closely with our European partners to uphold the international rules-based system and to keep all   our people safe. That is why it is right that our Brexit deal includes the deepest security partnership that has ever been agreed with the EU.
At this Council, I faithfully and firmly reflected the concerns of this House over the Northern Ireland backstop. I explained that the assurances that we had already agreed with the EU were insufficient for this House and that we had to go further in showing that we never want to use the backstop and that, if it is used, it must be a temporary arrangement. Some of the resulting exchanges at this Council were robust, but I make no apology for standing up for the interests of this House and those of our whole United Kingdom.
In response, the EU 27 published a series of conclusions. They made it clear that it is their,
‘firm determination to work speedily on a subsequent agreement that establishes by 31 December 2020 alternative arrangements, so that the backstop will not need to be triggered’.
The House will forgive me, but I think that this bears repeating:
‘the backstop will not need to be triggered’.
They underlined that,
‘if the backstop were nevertheless to be triggered, it would apply temporarily’,
and said that, in this event, the EU,
‘would use its best endeavours to negotiate and conclude expeditiously a subsequent agreement that would replace the backstop’.
They gave a new assurance in relation to the future partnership with the UK, to make it even less likely that the backstop would ever be needed, by stating that the EU,
‘stands ready to embark on preparations immediately after signature of the Withdrawal Agreement to ensure that negotiations can start as soon as possible after the UK’s withdrawal’.
In these conclusions, in their statements at the Council and in their private meetings with me, my fellow EU leaders could not have been clearer: they do not want to use this backstop and want to agree the best possible future relationship with us. There is no plot to keep us in the backstop. Indeed, President Macron said on Friday that,
‘we can clarify and reassure … the backstop is not our objective, it is not a durable solution and nobody is trying to lock the UK into the backstop’.
As formal conclusions from a European Council, these commitments have legal status and should be welcomed. They go further than the EU has ever gone previously in trying to address the concerns of this House. Of course, they sit on top of the commitments that we have already negotiated in relation to the backstop, including ensuring that the customs element is UK-wide; that both sides are legally committed to using best endeavours to have our new relationship in place before the end of the implementation period; that if the new relationship is not ready we can choose to extend the implementation period instead of the backstop coming into force; that if the backstop comes in, we can use alternative arrangements, not just the future relationship, to get out of it; that the treaty is clear that the backstop can only ever be temporary, and that there is an explicit termination clause.
But I know that this House is still deeply uncomfortable about the backstop. I understand that and want us to go further still in the reassurances that we secure.  Discussions with my EU partners, including Presidents Tusk and Juncker and others, have shown that further clarification following the Council’s conclusions is in fact possible. So discussions are continuing to explore further political and legal assurances. We are also looking closely at new ways of empowering the House of Commons to ensure that any provision for a backstop has democratic legitimacy and to place its own obligations on the Government to ensure that the backstop cannot be in place indefinitely.
It is now only just over 14 weeks until the UK leaves the EU. I know that many Members of this House are concerned that we need to take a decision soon. My right honourable friend the Leader of the House will set out business on Thursday in the usual way, but I can confirm today that we intend to return to the meaningful vote debate in the week commencing 7 January and hold the vote the following week.
When we have the vote, Members will need to reflect carefully on what is in the best interests of our country. I know that there are a range of very strongly held personal views on this issue across the House and I respect all of them. But expressing our personal views is not what we are here to do. We asked the British people to take this decision, with 472 current Members of this House voting for the referendum in June 2015 and just 32 voting against. The British people responded by instructing us to leave the European Union. Similarly, 438 current Members of this House voted to trigger Article 50 to set the process of our departure in motion, with only 85 of today’s Members voting against. Now we must honour our duty to finish the job.
I know that this is not everyone’s perfect deal. It is a compromise. But if we let the perfect be the enemy of the good, we risk leaving the EU with no deal. Of course, we have prepared for no deal, and tomorrow the Cabinet will discuss the next phase of ensuring that we are ready for that scenario. But let us not risk the jobs, services and security of the people whom we serve by turning our backs on an agreement with our neighbours that honours the referendum and provides for a smooth and orderly exit. Avoiding no deal is only possible if we can reach an agreement or if we abandon Brexit entirely and—as I said in the debate earlier this month—do not imagine that, if we vote this down, a different deal is going to miraculously appear. If you want proof, look at the conclusions of this Council. As President Juncker said, it is the ‘best deal possible’ and the ‘only deal possible’. Any proposal for the future relationship, whether Norway, Canada, or any other variety that has been mentioned, would require agreeing this withdrawal agreement. The leader of the Opposition, as well as some others, are trying to pretend they could do otherwise. This is a fiction.
Finally, let us not break faith with the British people by trying to stage another referendum. Another vote would do irreparable damage to the integrity of our politics, because it would say to millions who trusted in democracy that our democracy does not deliver. Another vote would likely leave us no further forward than the last, and another vote would further divide our country at the very moment we should be working to unite it. Let us not follow the leader of the  Opposition in thinking about what gives him the best chance of forcing a general election. For at this critical moment in our history, we should be thinking not about our party’s interests but about the national interest. Let us a find a way to come together and work together in the national interest to see this Brexit through.
I will work tirelessly over these new few weeks to fulfil my responsibility as Prime Minister to find a way forwards. Over the last two weeks, I have met quite a number of colleagues and I am happy to continue doing so on this important issue so we can fulfil our responsibilities to the British people, so that together we can take back control of our borders, laws and money, while protecting the jobs, the security and the integrity of our precious United Kingdom; so that together we can move on to finalising the future relationship with the European Union and the trade deals with the rest of the world that can fuel our prosperity for years to come; so that together we can get this Brexit done and shift the national focus to our domestic priorities—investing in our NHS, our schools and housing, tackling the injustices that so many still face, and building a country that truly works for everyone. For these are the ways in which, together, this House will best serve the interests of the British people. I commend this Statement to the House”.
My Lords, that concludes the Statement.

Baroness Smith of Basildon: Well, my Lords, another Monday, another Prime Minister’s Statement. I am grateful to the Leader of the House for repeating today’s offering, not that it offers very much. Last week, the noble Baroness referred to these Statements as her “weekly treat”, but I doubt that she or the Prime Minister feel the same way today. How relieved they must be that Parliament is not sitting next Monday—as far as we know.
This is not a Statement from the Prime Minister that gives any assurance or confidence that she knows where this is going or, indeed, where she is going. In last week’s Statement, following a weekend of assurances that MPs would vote on Tuesday, the Prime Minister refused to allow MPs to make a judgment on her deal. Rather than face defeat she pulled the vote, citing her wish to go back to the EU, although none of us was really clear what she was trying to get. Was it a change or a clarification? In the end, it was neither. Yet again, it was about her living in the moment, delaying a difficult decision, averting today’s immediate crisis without any credible plan for tomorrow.
So what is today’s Statement about? The Prime Minister has now been forced, at the very last minute, to indicate when the Commons will be able to vote on her agreement, but despite continued efforts to present the vote as a choice between her deal and no deal it remains the case that MPs will accept neither. What are the alternatives? We know that the Prime Minister does not want a further referendum, but I have to say I do not think she understands that the main reason this idea is now gaining greater currency, including apparently in her own Cabinet, is because of the failure of her own leadership. Noble Lords will have seen reports  that Mrs May’s chief of staff and her de facto deputy have discussed a further referendum as a means of breaking the current impasse.
Her Statement today, briefed out yesterday, to warn against a further public vote, is yet another example of her attempts to manage her own party rather than delivering for the people and businesses of this country. It is hard to know where her support now is. Despite winning a vote of confidence from her MPs, it is clear that if we assume, as I think we must, that the remaining Government members all voted for the Prime Minister in the secret ballot, she now has the support of only around half her Back-Benchers. All the while, some of her Cabinet colleagues—I use the word loosely—are attempting to take control of the Brexit process amid an unseemly jockeying for position in the chaos that now passes for government.
The Prime Minister cannot expect the world to stand still while she holds on to her deal, fearing its rejection by MPs but allowing nothing else to move on or make progress. It is worth recalling Sherlock Holmes, who said—or had it written for him, I should say—that:
“Once you eliminate the impossible, whatever remains, however improbable, must be the truth”.
So although the Leader of the Commons will make arrangements for the meaningful vote during the week commencing 14 January, that will be almost two months since the publication of the draft text and a mere 10 weeks until Article 50 expires. Surely MPs should have been allowed to eliminate the impossible—which, as noted earlier, are both the Prime Minister’s deal and the no-deal option—because for the past week the country has been paralysed by Mrs May’s reckless time-wasting. As things stand, this will continue now until the middle of January. We have said for months that parliamentarians should have been involved in mandating the negotiations.
The Education Secretary appears to have been convinced, proposing at last week’s Cabinet conference call a series of free votes to flush out which, if any, majorities exist in the Commons. The International Trade Secretary appeared to agree on “The Andrew Marr Show”, stating that he,
“wouldn’t have a huge problem with Parliament as a whole having a say”,
on what the options were. That may well be the only sensible thing we have heard on Brexit from Liam Fox. The Business Secretary added his support to that suggestion today, but still Mrs May stubbornly ploughs on towards the cliff edge. The public and businesses are desperate for certainty. Last week we saw the announcement of 5,000 job losses at Jaguar Land Rover, with our departure from the EU confirmed as part of the reason. As the deadline looms, others will be making investment plans, or not.
The Statement notes that European Council conclusions are legally binding, but this was not the test that the Prime Minister set herself last week. The Prime Minister says negotiations are ongoing. The Commission disagrees. I have a couple of fairly simple and straightforward questions for the noble Baroness. First, given this pressing need for certainty, with the deadline looming, can she confirm whether, in her opinion, any meaningful change, clarification or progress  was secured at the summit? Our view is that it is wrong for the Government to try to stumble into the Christmas Recess without putting the matter to a vote and allowing Parliament to move the process forward. I have to say to the noble Baroness that it really feels now that the Prime Minister is deliberately orchestrating a delay to ensure that there is an irresponsible choice between her deal and no deal.
The noble Baroness heard the truncated debate in your Lordships’ House earlier this month—I know she sat through a very large part of it—and the wide support for the no-deal part of the Motion in my name. She will also be at tomorrow’s Cabinet meeting, where apparently there is to be a discussion about spending an extra £2 billion on no-deal planning. Many in your Lordships’ House will consider this a dire use of taxpayers’ money. Would it not be better to cut that Cabinet debate short and use the time to prepare to get a view from MPs before Christmas on what is impossible, so that the time that remains—the sand is dropping out until the end of March—can be used to achieve something that is possible? Is the noble Baroness prepared to relay such a message from this House to the Prime Minister at the Cabinet meeting tomorrow?

Lord Newby: My Lords, I thank the Leader of the House for repeating the Statement. The following seems to me an accurate summary of the current situation:
“Downing Street has stopped selling the Prime Minister’s flawed deal. Instead we have displacement activity designed to distract from last week’s failed renegotiation and a concerted attempt to discredit every plausible alternative as they run down the clock. This is not in the national interest”.
These are not my words but those of Sam Gyimah, until recently a member of the Government, speaking earlier this afternoon. They sum up the Statement and the current impasse precisely. The Prime Minister did not achieve anything of substance at last week’s Council and is offering no prospect of any change to the backstop provision which stands the remotest chance of assuaging her opponents on her own Benches, far less any opposition MPs. The arithmetic in the Commons is the same as it was last week and will remain so, even if the Prime Minister gets one or two further general, vague assurances from the EU in the coming weeks.
In these circumstances, to wait four weeks for any meaningful vote in the Commons—almost 30% of  the time remaining until 29 March—is immensely irresponsible and clearly not in the national interest. I hope the Leader of the House will be able to tell us what the Government’s timetable is for the resumed debate on the deal in your Lordships’ House and when she expects us to be able to vote on it.
When we had our unfinished debate on the Government’s deal, I said that an election would fail to clarify matters because it would be fought by three Conservative Parties. I must apologise to the House. There are not three views of Brexit in the Conservative Party. There are now four different views being expounded by members of the Cabinet alone on the airwaves and in the press. Collective responsibility has completely disappeared, for the truth is that the Government have collapsed. On Brexit, there is no Cabinet agreement on  anything. Beyond Brexit, as the Select Committee chairs forcefully pointed out over the weekend, there is no progress on any domestic policy reforms at all, because Brexit is, in their words “sucking the life out of the Government”. In normal circumstances, the Opposition would be rampant. They certainly have every justification for calling a vote of no confidence this week.
I gather that the Opposition are indeed now tabling some sort of vote of no confidence in the Prime Minister, but it seems unclear quite what it means. I am tempted to say, “Nothing much new there, then”.
Let us see whether there is a substantive no confidence vote. If there were, whatever its outcome, it would have the advantage of narrowing down the options we now face. Of all of them, the Prime Minister has today decided particularly to attack the concept of a referendum. In her Statement, she says that such a vote would be extremely damaging,
“because it would say to millions who trusted in democracy that our democracy does not deliver”.
But that is precisely the point. The Prime Minister’s deal—indeed, any conceivable deal—could not deliver on the promises of the 2016 referendum, which were grounded in fantasy, not reality. That is why people are so disillusioned, why a majority now want to have the final say, and why they say that they would reject her deal and vote to remain if given such a say. By delaying a meaningful vote for four weeks, the Prime Minister is merely delaying the inevitable. She really should just get on with it.

Baroness Evans of Bowes Park: I thank the noble Baroness and noble Lord for their comments.
The noble Baroness asked about assurances at this summit. As the Statement made clear, there were a number of assurances in the EU Council conclusions. In particular, there was one new assurance, that the Council,
“stands ready to embark on preparations … to ensure that negotiations”—
on the future partnership—
“can start as soon as possible”.
Following the Council, the Prime Minister met with President Macron, Chancellor Merkel, Prime Minister Rutte and Presidents Tusk and Juncker. All were very clear that discussions on clarifications can continue. She will continue to discuss these over the coming days.
The Government understand that both Houses want to move on, which is why the Statement made clear that we intend to start the debate on the meaningful vote in the week commencing 7 January—the first week back after Christmas—and to hold the vote the following week.
The noble Lord asked about timing of a debate in this House. We had this announcement only today, but we will certainly be having discussions with the usual channels in parallel to discussions in the Commons. We have all worked on a cross-party consensus for the arrangement of debates previously. We certainly intend that to continue. We will let noble Lords know the outcome of those discussions as soon as we can.
The noble Lord mentioned again the second referendum. I can only reiterate what the Prime Minister has said, which is that Parliament has a democratic duty to deliver what the British people voted for. She remains determined to see that happen.
The noble Baroness asked for a message to be relayed to the Prime Minister. I can certainly assure her that the Prime Minister listens to the views of this House and will continue to do so.

Viscount Hailsham: My Lords, if the deal put forward by the Prime Minister fails to get through the House of Commons, as seems very likely, will my noble friend please tell the Cabinet that there is a large body of opinion in the Conservative Party, in Parliament and outside, supporting a further referendum? We will make common cause with all opinion, wherever we may find it, to achieve that desire.

Baroness Evans of Bowes Park: We are working hard to ensure that we do get this deal through. Should the House of Commons choose to reject it, however, there is a process set out in legislation. We will follow that.

Lord Browne of Ladyton: My Lords, in the seventh sentence of this Statement, the Prime Minister said that her,
“Brexit deal includes the deepest security partnership that has ever been agreed with the EU”.
This seems a very odd choice of words, since no such security partnership exists. The political declaration, in paragraphs 80 and following, sets out an ambition to have a broad, deep and comprehensive partnership with the European Union, but that is for negotiation. These paragraphs also make it clear that it will not be as good a partnership as we presently have with the other members of the European Union. Will the Leader of the House confirm that no such partnership exists; that the one we eventually have will be worse than we presently have; and that nobody who voted for Brexit voted for less security?

Baroness Evans of Bowes Park: The noble Lord is absolutely right. The political declaration is a declaration of our intentions for our future relationship. It certainly sets out the intention to have the strongest and broadest security relationship between the UK and the EU. Our partnership and strength in these matters was shown in particular, for instance, in the strong language of the Council conclusions on Russia and its actions in Ukraine, which was very much led by the Prime Minister. We will continue to work very closely on our security relationship. Both sides are absolutely determined to make sure that it is the deepest relationship that exists between the EU and another country.

Bishop of Leeds: My Lords, would the Leader of the House agree with me that the language of the Statement is not helpful? It says:
“But let us not risk the jobs, services and security of the people whom we serve”.
It is a fact that Brexit, of itself and the process we have gone through, has already done that. To say “Let us not further risk” might be more accurate. It also says:
“Another vote would do irreparable damage to the integrity of our politics”.
That integrity has already been rubbished by the lack of honesty about the realities that Brexit entails. Thirdly, it states that we should,
“get this Brexit done and shift the national focus to our domestic priorities”,
as if they were either/or.
As Sir Ivan Rogers makes clear in his remarkable lecture from the University of Liverpool—to which I would like to see a response from the Government—Brexit is process, not event, so there is no way in which it can be “got done”. This stage of it might be, but surely it is misleading to the country to suggest that it is somehow done if we get through this bit.

Baroness Evans of Bowes Park: This Government are going to deliver on the wishes of the British people, as expressed in the referendum. We and the EU have been clear that this is the best deal possible. It is a deal that we have worked extremely hard to secure and it will lead to a strong relationship between the UK and the EU in future. That is what we have been working towards and want to deliver to the British people, because that is what the British people wanted.

Lord Pannick: My Lords, I ask the Leader: what will happen if, as seems very likely, the House  of Commons does not approve the deal in the week of 14 January? Are the Government prepared to seek an extension of the Article 50 process in order to avoid the worst possible result, which is that we leave the EU with no deal?

Baroness Evans of Bowes Park: The Government will be working very hard to get the deal through the House of Commons. But, as I said in response to a previous question, if the House of Commons chooses to reject the deal, there is a process set out in legislation, which we will follow.

Lord Campbell of Pittenweem: My Lords, the Statement is anxious about future damage in the event of a second referendum, but what about the damage which recent events have been causing—in particular, damage to the value of the pound, which will undoubtedly result in an increase in the cost of living, and damage to the stock market, which will have an adverse impact on the value of the pensions of many of our citizens? Is the Cabinet so suffused with personal ambition and disloyalty that none of them notices what is happening?

Baroness Evans of Bowes Park: The reason we have spent so much time negotiating this deal, which is a good deal, is that we want to ensure that we have a strong relationship with the EU going forward. We are all cognisant of the problems of uncertainty; for instance, that is why we have agreed an implementation period to help ensure that there is not a cliff edge. We are cognisant of the concerns the noble Lord outlined,   which is exactly why the Prime Minister has been spending so much time negotiating a deal that is in the good interests of the UK and the EU.

Lord Lang of Monkton: Does my noble friend agree that it would be wrong in principle to embark on a second referendum when we have not yet completed delivery of the instruction from the electorate in the first referendum? But surely there is another reason, which is that it would be pointless to have a further referendum now because, far from people being better informed, the future relationship negotiations have not even started—and those are the ones that will most dramatically affect the future relationship between ourselves and the European Union.

Baroness Evans of Bowes Park: I entirely agree with my noble friend, which is why we are working to make sure that the deal is approved by the House of Commons and we can move forward and, as he rightly says, get to the extremely important position of talking in detail about our future relationship with the EU—a strong, deep one, which we all want.

Baroness Quin: My Lords, given that the Prime Minister said that it was important to act in the national interest, and given that the clear majority of Members of Parliament want to rule out no deal, in the national interest, why can we not have an early vote in the House of Commons which makes it quite clear that the House of Commons rejects the possibility of no deal?

Baroness Evans of Bowes Park: As the Statement makes clear, we have set out the timetable for the vote to take place. We do not want a no-deal situation, which is why the Prime Minister is focusing on providing additional reassurances to the House of Commons, which it has clearly said it wants in order to feel able to support the deal. That is what she is working on, but we have to prepare for all eventualities—that is the only thing a responsible Government could do—and until this deal is passed, there is the possibility of no deal. We are working hard to avoid it but we have to prepare for all eventualities.

Lord Wigley: My Lords, is it not outrageous that a vote that was supposed to take place last week will not take place until the week of 14 January, against a deadline of 21 January? Having sat through more than an hour of the questioning in the other place earlier, it is quite clear that there is not a majority for this deal or for a no-deal Brexit. In those circumstances, is not the plea that was made a moment ago from the Cross Benches for an extension of Article 50 the only sensible way to try to find a consensus, which does exist but is not being allowed to surface?

Baroness Evans of Bowes Park: I am afraid I cannot say anything more to noble Lords about the date of the meaningful vote. That is the date that the Prime Minister has announced. That is the date on which it will take place in the House of Commons.

Lord Hannay of Chiswick: My Lords, will the Leader of the House perhaps answer a couple of questions on the backstop? First, it is stated in the   Statement that the conclusions of the European Council have legal status. That is not my understanding. They have political status but I do not believe they have legal status. Secondly, has anything come out in the conclusions from the European Council or in any other way that has led the Attorney-General to vary the advice he gave the Cabinet that there is nothing in the withdrawal agreement that permits one side to unilaterally exit the backstop?

Baroness Evans of Bowes Park: As the conclusions were published only on Friday, I am afraid I do not know whether the Attorney-General has given any further advice. With regard to the timescale, I very much doubt it, but if that is not the case, I will write to the noble Lord.

Baroness Smith of Newnham: My Lords, the Prime Minister in her Statement suggested that another vote,
“would do irreparable damage to the integrity of our politics, because it would say to millions who trusted in democracy that our democracy does not deliver”.
But if there is not a position or a deal on which Members of the House of Commons can agree, democracy is already under challenge. To suggest that voting on the Prime Minister’s deal and pushing that through is the way to deliver democracy is a travesty. It is not what people who voted leave voted for—some of them did; many did not—and it is not what people voted remain for. We need to look again.

Baroness Evans of Bowes Park: We have not had a vote on the deal yet. The vote is coming. To decide further courses of action before we have actually had a vote does not seem that sensible. As I have made clear, if the House of Commons chooses to reject the deal, there is a process set out which will be followed.

Lord Bridges of Headley: My Lords, I welcome the fact that the Cabinet is to discuss its preparedness for no deal tomorrow morning. In light of that, would it be possible for the Government to give a Statement to Parliament on their preparedness for no deal before Christmas?

Baroness Evans of Bowes Park: As my noble friend will be aware, the Government have regularly updated this House, the other House and Select Committees on our no-deal preparations, and we will continue to do so.

Lord Davies of Stamford: Is it not the case that people are allowed to decide themselves how they vote? If they wish to change their mind from time to time, they have the right to do that. But on what possible basis of justification do the Government think they can dictate to the British people that they should not be allowed to vote to remain in the European Union if they want to?

Baroness Evans of Bowes Park: Parliament asked the people to make a decision and they did in the referendum. That is what we are now delivering.

Lord McCrea of Magherafelt and Cookstown: My Lords, the Prime Minister tells us that nobody in Europe wants to use the backstop. That begs the question: if no one in Europe wants to use it and no one in Westminster wants to use it, why is it there? Can the Leader tell the House precisely what changes the Prime Minister requested that she believes will effectively deal with the backstop?

Baroness Evans of Bowes Park: The noble Lord will be aware that the backstop is an insurance policy. We, the EU and the Irish Government have been clear time and again that nobody wants to use the backstop. As I said, the Prime Minister wants further assurances for MPs in the House of Commons that it will not be used. As I have said, in the conclusions that were published on Friday the EU made it clear that it was its firm determination to work speedily on a future relationship so that the backstop will not need to be triggered, and that if the backstop was ever triggered it would apply only temporarily.

Lord Jopling: My Lords, having noted what the Prime Minister said in the Statement with regard to another referendum, the Leader will agree that there is a growing clamour in favour of having another referendum. As we move towards that—possibly—could we all stop talking about a second referendum? It is in fact a third referendum. The small group of people who clamoured over the years to have a second one, which they succeeded in getting in 2016, are now exactly the same people who are saying that a third one at this stage would be unconstitutional. Surely that is hypocrisy in the deepest possible way.

Baroness Evans of Bowes Park: I can say to my noble friend that the focus of the Government is to get through the deal that has been negotiated—a deal that delivers for the UK and the EU and a deal that both sides say is the best deal possible.

Lord Howarth of Newport: My Lords, when the noble Baroness the Leader meets her Cabinet colleagues tomorrow to discuss preparations for no deal, will she encourage them not to waste their energies on trying to conjure political rabbits out of the House of Commons hat, to dismiss the lurid propaganda about cliff edges and catastrophes, to apply themselves vigorously to preparing for an orderly transition to WTO rules and to embark at the earliest possible moment on negotiations for a free trade agreement with the EU?

Baroness Evans of Bowes Park: As the noble Lord knows, and as I have said in response to earlier questions, we do not want no deal but it is only right that a prudent Government plan for one. He will also be aware of the extensive work that has already been under way to prepare for no deal over the past two years: the 106 technical notices, the various agreements that we have in place and the money that we have put into preparing for it. This is not a situation that we want to be in but we have to ensure for the British people that all contingencies are covered, and that is what we are doing.

Baroness Meyer: My Lords, how much taxpayers’ money would be spent if we had a second referendum? A second referendum would be a complete disaster. As the Prime Minister said, it would damage the core of a democracy that we took 1,000 years to achieve, and this Parliament is part of it. If you do a second referendum, why not a third or a fourth? Actually, why not govern by referenda and get rid of Parliament altogether? It is madness.

Baroness Evans of Bowes Park: I understand that the Electoral Commission has recently published figures showing that the referendum in 2016 cost around £150 million or £160 million. If that is incorrect then I will write to my noble friend, but I think those are the figures that were published. We are not considering a second referendum. We are working to ensure that this deal is passed by the House of Commons.

Lord Lea of Crondall: My Lords, much has been made of the need to get the right sequencing into all this. People have generally agreed that it has to be sequenced in a proper way. In order that we do not run out of road, can the noble Baroness the Leader confirm that the current government thinking is that, now that we know the meaningful vote is not until the middle of January, nevertheless there will be time for Parliament to use its good offices to look at how far different options can add value to the way in which the body politic goes forward before other ideas are considered in this very tight timetable, unless we extend the period?

Baroness Evans of Bowes Park: I reiterate that the meaningful vote will be held in the week of 14 January. Obviously we are looking towards winning that vote. As I have also set out, if the House of Commons rejects the deal then there is a process set out in legislation but, as the Statement said, if the deal goes through then we are looking at ways in which we can engage Parliament further in future as we move into the political relationship.

Lord Birt: Perhaps alone, I think the Prime Minister actually makes a rather compelling case for her deal in the Statement. Yes, it is a compromise, and it is risky and unpalatable, but it offers a route to a productive future relationship with the EU. In this febrile atmosphere, though, I fear that no one is listening to her.
I have two buts. First, we should not wait a month for a meaningful vote; if this does not get through, we need a plan B much more quickly than that. Secondly, I disagree—I hope the noble Baroness the Leader will tell the Cabinet tomorrow the mood of this House—with the Prime Minister’s argument that another vote would divide our country. That is simply not true. I think the opposite is the case: if we run out of road, and it looks as if we are doing so, another vote will be the only way to unite the country.

Baroness Evans of Bowes Park: As I have said, what we will be focusing on in the weeks before the vote in January is to hope to provide reassurances to MPs so that they vote to support the deal. We will be continuing  to talk about the fact that we believe that it is a good deal for both the EU and the UK. That is what our European partners have said and it is what we believe, and we will continue to make the case while trying to get the reassurances that MPs need in order to feel able to support it.

Baroness Andrews: My Lords, may I take the noble Baroness back to the question asked by the noble Lord, Lord Pannick? If the House of Commons rejects the Prime Minister’s deal, she tells us that there is a process. Does that process include consideration of the extension of Article 50, or of the other options that are under consideration—for example, the customs union and the Norway option? Could she give us more detail, particularly on the point about Article 50?

Baroness Evans of Bowes Park: As I have said, our focus as a Government, and the focus of the Prime Minister, is to ensure that we provide the reassurances that MPs need to get this deal approved. This is the best deal for the EU and the UK. I am afraid I am not going to speculate on situations that may arise if this deal is rejected by the House of Commons. As I have said, a clear process is set out. What our focus is on is to make sure that this deal does get the support that we believe it warrants and that is what the Prime Minister will be focusing on in discussions with her European colleagues over the coming weeks to try to make sure that that is the situation that happens, because we believe that that is the best outcome for the UK and we believe that that is what delivers the referendum result that the people voted for.

Counter-Terrorism and Border Security Bill
 - Report (2nd Day) (Continued)

Clause 21: Port and border controls

Amendment 33A

Moved by Lord Paddick
33A: Clause 21, page 22, line 19, at end insert —“(2) The Secretary of State must lay a report annually before both Houses of Parliament setting out details of the exercise of each of the powers provided by Schedule 3 to this Act, and Schedule 7 to the Terrorism Act 2000, during the year in question.(3) For the purposes of the report in subsection (2) the details must include (but not be limited to) statistics on—(a) the religion, and(b) the ethnicity,of the persons subject to the exercise of the powers.”

Lord Paddick: My Lords, this amendment is in my name and that of my noble friend Lady Hamwee. Before I get to the substance of it, I would like to say that lacking in the debate so far today has been the recognition that it is essential that communities work   together with the police and the security services in order to defeat terrorism. In fact, when I was a serving police officer and Deputy Assistant Commissioner John Grieve was the head of the counterterrorism department at New Scotland Yard, he said exactly that: it is communities that will defeat terrorism, not the police and the security services working alone.
That was back in the days of Irish republican terrorism, which, in terms of conventional ways of defeating terrorism, was an easier foe to defeat. The Irish Republican Army was a traditional hierarchical organisation that could be infiltrated, and which worked on large-scale spectacular terrorist attacks, so it was much easier to detect than the current threats we face. At the time, DAC John Grieve was talking about the fact that people from Ireland were coming over to the UK and, for example, renting garages to store large quantities of explosives and so forth, so the community could provide information to the police on that sort of activity. Now we see lone-wolf attacks or groups of friends who do not communicate with each other but come together very quickly to carry out far less sophisticated but none the less deadly attacks, regrettably, as we have seen over recent years. The support and co-operation of the public is therefore even more important now than it was when John Grieve was head of the counterterrorism department.
Trust and confidence come from confidence in what the state is doing to defeat terrorism through legislation and activity. That is why we have tabled this amendment. We have discussed at earlier stages of the Bill both Schedule 7 to the Terrorism Act—which provides the power to detain people at the border and at airports in order to question them as to whether they were about to engage in terrorist activity—and Schedule 3 to this Bill, which provides an even wider power.
Our initial position was that these powers should be exercised only if there was reasonable cause to suspect that the individual being detained and questioned was involved in terrorism. The House heard compelling arguments from, among others, the noble Lord, Lord Anderson of Ipswich, as to why that reasonable suspicion threshold could hamper the work of those keeping us safe at the border. We still have concerns about that. The House having not accepted that that should be part of the way that Schedule 3 and Schedule 7 operate, we have tabled this amendment, which requires the Government to report on the religion and ethnicity of people who have been subject to powers under those schedules.
The Liberal Democrat Campaign for Race Equality has received a number of complaints from people who say they have been detained at airports and have even missed flights before they were allowed to go on their way, and have received no compensation. There is a feeling in some communities that Schedule 7 powers—Schedule 3 powers have yet to come into force—are being unfairly targeted on Muslims and people from black and minority ethnic backgrounds. This amendment would bring transparency to the exercise of the powers under Schedules 7 and 3 by requiring the Government to produce a report detailing how those powers are being exercised, including statistics on the religion and ethnicity of the people subject to them. I beg to move.

Lord Kennedy of Southwark: My Lords, Amendment 33A in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, has considerable merit. It proposes the collection of this data, including what is set out in subsection (3) of the amendment, and laying a report before Parliament detailing the exercise of the considerable powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act during the year in question. I will be interested to hear the Government’s response. If they are not minded to accept the amendment, I hope they will give a full explanation of why this is not deemed necessary or acceptable.

Baroness Williams of Trafford: My Lords, I thank both noble Lords for their points. I agree with the sentiment of what the noble Lord, Lord Paddick, said about the role of communities. They are important in assisting the police and security services in countering not only terrorism but extremism. Amendment 33A would require the Home Secretary to lay a report before both Houses of Parliament each year setting out how the ports powers under Schedule 7 to the Terrorism Act 2000 and Schedule 3 to this Bill have been exercised.
Reiterating some of what I said earlier, the Government agree with the sentiment behind the amendment, but I hope the noble Lord will agree that it is unnecessary. We entirely agree that transparency and accountability are appropriate in governing the exercise of the new hostile activity ports powers, as is the case with the existing counterterrorism powers. I reiterate, however, that such mechanisms are already in place through the work of the Independent Reviewer of Terrorism Legislation with respect to Schedule 7, and the future role of the IPC for Schedule 3. Part 6 of Schedule 3 already requires the IPC to review the use of the powers by making an annual report. We envisage this working in a very similar way to the role of the Independent Reviewer of Terrorism Legislation, who reports annually on the use of counterterrorism powers under the Terrorism Act, including those in Schedule 7.
Noble Lords should be reassured that the commissioner, like the independent reviewer, will be afforded full access to any Schedule 3 record on request and information on how the powers have been exercised. The scope and content of these reports will be at the discretion of the commissioner, as they have been for a number of years regarding Schedule 7. The annual reports by the independent reviewer are augmented by the quarterly statistical bulletins, published by the Home Office, on the operation in Great Britain of police powers under the Terrorism Act 2000. The latest bulletin was published on 6 December and, incidentally, recorded a further 25% decrease in the number of Schedule 7 examinations compared with the previous year. The number of Schedule 7 examinations has now fallen by 79% since the data was first collected in the year ending 30 September 2012. The published data already includes information about the ethnicity of examinees and the number of detentions.
As I said earlier, we are considering with the Home Office chief statistician the appropriate arrangements for publishing statistics on the exercise of the Schedule 3 powers, but we would expect to publish equivalent  statistics to Schedule 7. The statistical reports in respect of Schedule 7 do not currently identify the religion of examinees, but we are ready to explore this with the Home Office chief statistician, the police and others. I hope that, on this basis, the noble Lord feels happy to withdraw his amendment.

Lord Paddick: My Lords, I am grateful to the Minister for her explanation. What comes across to me in her response to this and other amendments is that there is a degree of transparency and accountability, in that the Independent Reviewer of Terrorism Legislation will look at the Schedule 7 powers and the IPC, presumably, will examine those under Schedule 3. It is all very well for the Government, the independent reviewer or the Investigatory Powers Commissioner to be satisfied that these powers are being used appropriately, but they are not the people who need to be convinced that they are being used fairly: it is the communities—particularly the Muslim community—that need to be convinced. Publishing the religion of people being subjected to these powers is crucial if we are to get the Muslim community to work with us to defeat terrorism.
As I said when I introduced the amendment, people, or groups, can switch almost overnight. For example, the attempted bombings on 21 July 2005 were a carbon copy of those on 7 July, which did not go according to plan. They were supposed to involve four bombs on the Underground, and the copycat attacks on 21 July involved three on the Underground and one on a bus because of what happened on the 7th. That is how quickly the first attack was copy-catted by another group. It is the friends, neighbours and close associates of these lone wolves and groups of friends who will pick up on the changes in their behaviour that show they are moving from being radical to being violent and potentially deadly. It is therefore absolutely essential that we do everything we possibly can to win the trust and confidence of the communities from which these people come.
I am encouraged by the Minister saying that the Home Office statistician will be looking at the issue.

Baroness Hamwee: The Minister said that the Government will be looking at this with the chief statistician and the police. Can she give a timeframe for that? If she cannot do so now, can come back to the House before too long with an idea of when we might expect some further information on this work?

Baroness Williams of Trafford: I will come back to the noble Baroness in writing.

Lord Paddick: On that basis, I beg leave to withdraw the amendment.
Amendment 33A withdrawn.

Amendment 34

Moved by Lord Marlesford
34: After Clause 21, insert the following new Clause—“Review: national identity numbers  (1) Within the period of 2 years beginning with the day on which this Act is passed, the Secretary of State must lay a report before both Houses of Parliament reviewing the case for the introduction of national identity numbers to assist in countering terrorism and ensuring border security.(2) The review must consider whether unique national identity numbers should be linked to a secure and central database containing biometric data to assist with establishing and verifying the identity of possible terrorism suspects or those engaged in hostile state activity, accessible by the relevant national authorities.”

Lord Marlesford: My Lords, this is the second time I have brought my amendment to your Lordships’ House. It fits in very well with the discussion we have had today. There has been a lot of talk about the unease that much of the anti-terror legislation we have appears to discriminate against certain groups. I understand that unease. The legislation is necessary and the threat of Islamic terrorism is sadly growing. One must feel very apprehensive in view of what has suddenly bubbled up yet again in France with the murder of five people by a lone person, probably inspired by IS, in Strasbourg in the Christmas market. We have to be completely on our guard.
I am proposing something totally non-discriminatory. It is not particularly aimed at terrorism, but it is wholly relevant to terrorism and therefore relevant to this Bill. It is essential that any state with a well-ordered government knows who its citizens are. By citizen I mean the nationals and the people living in the state. This is needed for every sort of reason, because the Government are more and more involved with their citizens. We have highly sophisticated welfare systems, health systems, tax systems and many others—control over driving licences and all the rest.
I propose something very simple. I am not asking a lot because I recognise that the Home Office has difficulty with some of these modern concepts of electronics. I sympathise in a sense because my grandchildren are much better at it than I am, but I think I am rather better at it than the Home Office.
Basically, I am asking the Government to take two years to study the possibility of having a system of identification by number, not identity cards, so that everybody has a unique number. That number, in order to make sure that it relates to the person concerned, will be linked to the biometrics of that person. They would not be on a card. That is dangerous because a good criminal terrorist or somebody like that can fake a card, including the biometrics. The biometrics would be centrally held. What the biometrics are is another matter. I know that the Home Office has been very frightened of DNA. I cannot see the difference between DNA and fingerprints, or even a photograph. Biometrics are biometrics and there are many of them and two or three are needed for certainty.
That is part of the study referred to in the second part of my amendment. The first part is to produce:
“Within the period of 2 years beginning with the day on which this Act is passed … a report before both Houses of Parliament reviewing the case for the introduction of national identity numbers to assist in countering terrorism and ensuring border security”.
The second part of the amendment is to,
“consider whether unique national identity numbers should be linked to a secure and central database containing biometric data”.
I emphasise that it is extremely secure. It is perfectly possible to be absolutely clear who can have access for whatever purpose. All that is simple stuff now. We live in a cyber world and the British Government in many respects are absolutely in advance. GCHQ is a world leader. I think my noble friend Lord Howe will answer this debate and I pay great tribute to him because he is fully aware of things from the point of view of the Ministry of Defence. I give great plaudits to the Ministry of Defence that it is totally up to speed on this. I am afraid the Home Office is not, but I hope it will at least consider this. It is not asking very much.
Many other areas will have side benefits from such a system, particularly national insurance numbers. I have asked PQs on this: there are tens or even hundreds of thousands of extinct national insurance numbers which are still potentially in use. They enable fraudulent use to be made of the various national insurance systems. As far as the National Health Service is concerned, we all have a national health number, but as well as for processing in hospitals it is intended to tell us who is entitled to the services.
We know that the National Health Service is desperately short of funds. Part of the reason is because a lot of people who are not entitled to receive its services are getting them. We have a wonderful reciprocal scheme with Europe whereby Brits going to Europe can be treated under its health service and the British Government pay the cost. That comes to about £500 million a year. The reciprocal is that people from Europe coming to Britain have the right to be treated here and we bill them. We pay £500 million, they pay £50 million. There is something wrong with the administration of the system. When it comes to non-EU citizens and non-UK citizens, the gap is £1 billion, before going on the GP service and primary healthcare where no attempt is made to stop people who are not entitled to use it.
My system, once established, would enable the Government throughout their whole range to see that the services are used by those entitled to them and not by others. At the moment, the service which is available to those who are entitled to it is diluted to a significant extent by its use by people who are not entitled to it.
As for the security side, which is the primary function of the Bill, I think everybody would agree that it is essential that we have a secure and certain system of knowing who the citizens of this country are. I hope my noble friend will say that the Home Office will at least consider this. I beg to move.

Lord Kennedy of Southwark: My Lords, Amendment 34 brings the attention of the House to an important issue that the noble Lord raised in Committee. I suspect from the response given then by the noble Earl, Lord Howe, to that short debate that, unless there has been a major shift in government thinking, this amendment will make no further progress. That is not to say that the noble Lord has not raised an important issue and deserves a considered response from the Government, which I am sure he will get.
At the heart of the amendment is an attempt to protect fellow citizens and, using a review, to look beyond the introduction of national identity cards, which was my party’s policy when in government. We also looked at the advances in science. We learn on a regular basis how advances in science have brought criminals to justice, particularly those who have committed the most heinous crimes many decades ago. They thought they had got away with it, but advances in science brought them to justice.
The issues raised by the noble Lord are for a wider debate on a future date on issues of science and technology and how they are used to keep us safe, while being fully aware that criminals also seek to use advances in science and technology to commit crimes, to murder people and to threaten our country and its values. I am clear that the noble Lord is asking for a review and nothing more than that. We must keep things under review. What should the state do to keep us safe? What is being done now and is it proportionate? I look forward to the Government’s response and thank the noble Lord for raising these issues.

Earl Howe: My Lords, I am grateful to my noble friend Lord Marlesford for once again setting out his arguments in favour of introducing national identity numbers backed up by a national identity register containing biometric data of everyone in the country, or at least the adult resident population. I recognise the constructive intentions behind this amendment. My noble friend will recall that in Committee I stated that the introduction of a national identity number and register would be prohibitively expensive and would represent a substantial erosion of civil liberties. I know that I will disappoint him by saying that this remains the Government’s position. In consequence, I remain unconvinced of the need to carry out a review to determine this.
Any measure of the kind my noble friend is proposing would have to be evidence-based. We have seen no evidence that a national identity number or biometric database would offer greater protection against terrorism or greater control at the border. As I said in Committee, although a number of European countries have national identity numbers, these have not been able to prevent terrorist atrocities from being carried out—a point well made by the noble Baroness, Lady Manningham-Buller. Indeed, even were we to imagine any of those countries having a biometric database alongside national identity numbers, it is hard to see how this would have made any difference to the ability of the police to forestall those attacks.
Resources need to be directed to where they can be relied upon to add tangible value. I am of a view that the investment we are making in security, counterterrorism, better use of intelligence and cybersecurity is a more effective use of resources to keep the country safe against the ongoing threat from terrorism and hostile state activity. I know my noble friend takes a more sanguine view than many noble Lords about the retention of biometric data, but let us think about the debates we have had during the passage of this Bill. During debate on Schedule 2, the Government have been quite properly probed by noble Lords as to whether  we have got the balance right on the retention rules for fingerprints and DNA taken from persons arrested for, but not charged with, a terrorism offence. I am clear that the balance is right but the Government accept that, where someone has not been convicted of an offence, there need to be appropriate restrictions on the retention of biometric data. I believe that this view is shared by the overwhelming majority of Members of your Lordships’ House.
Against the backdrop of those debates on Schedule 2, my noble friend’s proposition appears all the starker. He is advocating a national database containing the biometrics of the whole population with, presumably, the data being deleted only on the death of an individual. In considering such a proposition, it is instructive to remind ourselves what the Constitution Committee said about the then Identity Cards Bill in March 2005—that,
“the constitutional significance of the Bill is that it adjusts the fundamental relationship between the individual and the State … the Bill seeks to create an extensive scheme for enabling more information about the lives and characteristics of the entire adult population to be recorded in a single database than has ever been considered necessary or attempted previously in the United Kingdom, or indeed in other western countries. Such a scheme may have the benefits that are claimed for it, but the existence of this extensive new database in the hands of the State makes abuse of privacy possible”.
We do not believe the case against a national identity register has changed in the intervening years.
Having said that, I hope that I have been able to reassure my noble friend that the Government take the need to counter terrorism and maintain border security very seriously; indeed, we would not be debating the Bill today if this were not the case. Having again had the opportunity to debate the issue, and with the reassurance I have offered about the Government’s commitment to protect the public, I respectfully ask my noble friend if he would be content to withdraw his amendment.

Lord Marlesford: I thank my noble friend for his reply and the trouble he has taken with it, but I am not reassured at all. He started by talking about the enormous cost; I was only asking for a study. One of the things a study would reveal would be some indication of costs; that would be a criterion in knowing how to move forward. Then he produced the idea that countries which have identity systems have not been able to prevent terrorist attacks; certainly terrorist attacks have occurred in countries with those systems, but it is failing logic to say that that means they are of no use. We do not know which attacks were not successful as a result of having the system.
One could produce a great deal of evidence of cases where it would be very useful to the security services and the police, as well as the examples I gave in the wider sector, to be sure of who people are. The civil liberties argument is a real non-runner: the state already has a mass of information. All I am suggesting is that it is better organised so that it can be better used and more securely kept. I know that, as far as the Home Office is concerned, I am speaking to deaf ears but  that does not mean I will cease to speak. I shall cease now, but I will certainly return to it. In the meanwhile, I beg leave to withdraw my amendment.
Amendment 34 withdrawn.

  
Schedule 3: Border security

Amendment 34A

Moved by Lord Anderson of Ipswich
34A: Schedule 3, page 38, line 41, leave out “hostile act” and insert “serious crime”

Lord Anderson of Ipswich: My Lords, Schedule 3 to the Bill will confer a bristling armoury of powers on ports police: the power to detain travellers for up to six hours; a requirement that questions be answered and passcodes surrendered, on pain of prosecution and possible imprisonment; powers to take samples and strip search; and the power to download and retain the entire contents of laptops and mobile phones. In Committee, I expressed unease at the prospect of some 1,400 ports officers up and down the country being entrusted with these powers and the right to use them without any need for suspicion for the purpose of determining whether members of the travelling public appear to be engaged in activity that, while reprehensible, is perfectly lawful.
At that stage, three examples were given of activity that was said to be detrimental to national security without amounting to serious crime. Each of them fell squarely within the scope of the Official Secrets Acts 1911 and 1920 and could thus have quite legitimately been the subject of questioning under a law formulated according to these amendments. I continue to believe that strong coercive powers of this nature should, as a matter of principle, be available only in the context of criminality and that the best way to address any deficit is by amendment or addition to our national security legislation. However, since Committee, two further examples have been put to me on which the Minister may choose to elaborate that suggest at least one respect in which our existing law is inadequate to protect against threats to our national security. So until that gap has been filled, a pragmatic case, I accept, has been advanced for extending the Schedule 3 power beyond serious crime.
Furthermore, government Amendment 34C has addressed the most obviously objectionable feature of the clause, and that is its unqualified recourse to the nebulous—if I may use that word—notion of threats to,
“the economic well-being of the United Kingdom”.
I understand that further assurances are to be offered in the draft code of practice that will be laid before this House after the passage of this Bill.
Finally, I take comfort from paragraph 62 of Schedule 3, which the Minister mentioned in the previous debate, which requires the Investigatory Powers Commissioner—currently Sir Adrian Fulford, a serving Lord Justice of the Court of Appeal—to keep under review the operation of the relevant provisions, and provides for the publication of the commissioner’s  annual review. Annual reviews over the many years of the equivalent power under Schedule 7 to the Terrorism Act have given rise to a number of changes to the code of practice and to legislation, and have been extensively relied on in the courts.
Will the Minister confirm that the necessary additional resources will be made available to the Investigatory Powers Commissioner for the performance of that task by him and his office? Will she confirm that that will be the case even if the number of stops should turn out greatly to exceed the current estimate of 100 per year? She will remember that, according to figures—provided to me by the Metropolitan Police and published in December 2016—on the intelligence reports filed after Schedule 7 stops between 2009 and 2015, an annual total of between 5% and 8% related to counterespionage and between 8% and 17% related to counterproliferation. That was despite the fact that at that stage no specific power existed for questioning travellers in order to determine whether they were spies or proliferators. It would seem that quite large numbers of people who might have fallen within those categories were stopped and questioned. If remotely accurate, those figures are suggestive of the possibility that the Schedule 3 power could be used up to a few thousand times a year rather than merely several dozen. I appreciate that the Minister does not have a crystal ball, but the need for proper resource to report on this extremely sensitive power is clear and I hope that she will acknowledge that.
On that basis, I support government Amendment 34C and do not propose to press Amendments 34A, 34B or 34D. I beg to move.

Lord Paddick: My Lords, I added my name to the amendments in the name of the noble Lord, Lord Anderson of Ipswich. As he said, the Schedule 3 powers are considerable and can be exercised against someone even if the activity they are suspected of being engaged in does not amount to a serious crime. Therefore, we certainly feel that the amendments are valid. However, we accept that the noble Lord has received reassurances from the Government, which I hope the Minister will elaborate on in her response. Clearly, following the comments that we made from these Benches about actions that affect “the economic well-being of the United Kingdom”, the amendments tabled by the Minister provide reassurance on that particular issue.

Lord Kennedy of Southwark: My Lords, Amendment 34A in the name of the noble Lord, Lord Anderson of Ipswich, raises the same issue that the noble Lord led on in Committee. The noble Lord quite rightly raised the issue of the words “hostile act”. The words are far too wide and give a disproportionate power to the relevant authorities. The noble Lord spoke in Committee about these strong coercive powers.
To their credit, the Government have listened to that debate and I know that they have been in discussion with a number of noble Lords around the House, as have government officials. I have found those discussions very helpful and I am persuaded that the amendments  put forward by the Government in this group address the concerns raised previously, so I am content to support the Government and their amendments in this group.

Baroness Williams of Trafford: My Lords, with this group of amendments we return to the question of the proper scope of the powers in Schedule 3. The noble Lord, Lord Anderson, has again argued that police powers of this kind should only be available to the police to tackle criminal behaviour. As I highlighted in Committee, and would like to stress again, these new powers to examine persons at ports and the border area are specifically designed to mitigate the threat from all forms of hostile state activity. Limiting the scope of these powers would limit the range of threats that we would be able to detect, disrupt and deter, thereby leaving the country vulnerable.
The noble Lord is correct that many of the activities we are concerned about may be criminal in nature, including offences under the Official Secrets Act 1911. However, not only is this legislation generally recognised to be outdated and not fit for the modern age, but not all hostile activity would fall within scope. The noble Lord is right that we need to consider modernising the law in this area, and the House is aware that the Law Commission is undertaking a review of criminal law surrounding the protection of official data, which includes all the Official Secrets Acts, but this work will necessarily take some time to come to fruition and, until we know the outcome, it would be wrong to narrow the scope of the provisions in Schedule 3. To do so would necessarily inhibit our ability to counter hostile activity, as the police would naturally err on the side of caution when conducting stops, given the risk of challenge about whether the stop or subsequent questioning was clearly for the purpose of determining whether the examinee is, or has been, involved in serious crime.
I recognise the noble Lord’s concerns that the breadth of the power could encompass activities which are not considered crimes. If such activity threatens the safety of our citizens, our democracy and our national security, it is only right that we afford the police the powers to investigate, prevent and discourage these acts in order to protect us. Some hostile activity would not be considered criminal activity under the law as is stands—for example, the proliferation of disinformation. We know that certain states routinely use disinformation as a foreign policy tool and have seen evidence of this happening elsewhere.
In recent years, some states have attempted to influence opinions online by using human and automated troll farms to establish fake social media profiles or spread disinformation. One can imagine a scenario in which a member of one such troll farm, controlled by a foreign power that has been observed attempting to influence public debate in the UK, travels to the UK. The act of sowing discord through proliferation of disinformation is not a crime in the UK, but you can imagine a scenario in which it would threaten our national security. Under the noble Lord’s proposed amendment, police officers at ports would be rightly unwilling to ask about these activities, as they are not illegal.
Interference operations are not restricted to the online space. Suppose an individual with suspected links to a hostile foreign intelligence agency travels to the UK, with the intention of meeting parliamentarians under a benign pretext, but with the real intention of influencing them to support a particular position which would be of benefit to that state. This type of activity is not illegal in the UK; the individual is not obliged to disclose that they have an ulterior motive of seeking to influence parliamentarians, but noble Lords understand that this activity is a threat to our national security and risks undermining our parliamentary democracy. Under the noble Lord’s amendment, as this type of activity would not be classified as a crime in the UK, police officers at ports would be unable to ask questions of a sufficiently detailed nature to provide the level of insight necessary to properly understand, assess, further investigate or disrupt the threat that this activity would present.
Some individuals may not even be aware that they are acting on behalf of a hostile actor. They may think they are working for a charity or a friend. Many of the serious crimes that we would consider linking to Schedule 3 require an intention element on the part of the individual.
We have reflected carefully on comments made, including by the noble Lord, Lord Paddick, about the scope of the “threatens the economic well-being of the United Kingdom” limb of the definition of a hostile act. There were concerns that legitimate business ventures would fall within scope of the power. This limb of the definition is intended to ensure that these powers can be used to mitigate hostile acts such as damaging the country’s national infrastructure or disrupting energy supplies to the UK. It is not our intention that these powers are available to examine those travelling only to conduct legitimate business.
To address these concerns, I have tabled Amendment 34C, which narrows the scope of the “economic well-being” limb. This amendment will provide that an act is a hostile act under this limb only if it threatens the economic well-being of the UK,
“in a way relevant to the interests of national security”.
The other government amendments in this group make consequential changes to other references to the economic well-being of the UK in Schedule 3.
The noble Lord, Lord Anderson, asked whether the IPC will have the resources needed to review the use of Schedule 3. The Government are committed to ensuring the Investigatory Powers Commissioner has the resources that he or she needs to fulfil all their functions, including Schedule 3 when these provisions come into force. However, I should emphasise that we expect the use of Schedule 3 powers to be very low, certainly far below the number of Schedule 7 examinations conducted in 2017.
At this point, perhaps I may remind noble Lords that the Home Office is reviewing whether there is a need for new counter hostile state activity legislation. I have already mentioned the Law Commission review of the Official Secrets Acts, but our work is not confined solely to that area of criminal law. Of course, any reforms to the Official Secrets Acts or any other new offences will require further primary legislation and, in taking this work forward, I can assure the  noble Lord that we will examine as part of the work whether there are any changes that we ought to make to Schedule 3.
In taking this wider work forward, we will also have the benefit of the annual reports on the exercise of Schedule 3 powers by the IPC. I am confident that in reviewing this, having all the resources he needs in place, the commissioner will adopt the same robust approach as did the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorism Legislation. He will not hold back from making recommendations if he considers that, in the light of the experience of operating these powers, changes should be made to Schedule 3. Moreover, the provisions of the Bill will be subject to the normal five-year post-legislative review.
I hope that, given this explanation, the noble Lord will be content to withdraw his amendment. I have explained the need to maintain the current scope of the power subject to the narrowing of the “economic well-being” limb.

Lord Anderson of Ipswich: I am grateful to the noble Baroness for what she has said, and in particular for the constructive and successful efforts that are being made to reduce the attack surface, if I may use the intelligence jargon, of these very broad powers. I beg leave to withdraw the amendment.
Amendment 34A withdrawn.
Amendment 34B not moved.

Amendment 34C

Moved by Baroness Williams of Trafford
34C: Schedule 3, page 39, line 6, after “Kingdom” insert “in a way relevant to the interests of national security”
Amendment 34C agreed.
Amendment 34D not moved.

Amendment 34E

Moved by Baroness Jones of Moulsecoomb
34E: Schedule 3, page 39, line 41, at end insert—“(2) A person may refuse a request for documents or information under paragraph 3(1) where—(a) the information or document in question consists of journalistic material within the meaning of either section 13 of the Police and Criminal Evidence Act 1984 or section 264(1) to (4) or (6) and (7) of the Investigatory Powers Act 2016;(b) the information or document in question is subject to legal privilege; or(c) the information or document in question may reveal the identity of a source of journalistic information.”

Baroness Jones of Moulsecoomb: My Lords, I recognise that this amendment is not perfect and I am sure that the government draftsmen could make a  better job of it, but the Government have shown that they are open to amending the Bill to improve it and to put in the necessary safeguards for journalists and others. For that reason, I ask the Minister to look again at the Schedule 3 power and to add proper oversight of its use.
The existing powers in Schedule 7 to the Terrorism Act have already proved open to abuse. When David Miranda was stopped at the border on the instruction of the security services, it was because he was the partner of Glenn Greenwald, a journalist reporting on the facts released by whistleblower Edward Snowden. It is thanks to these heroic individuals that we now know the true extent to which the American National Security Agency spies on just about every person who owns a phone or a computer. David Miranda was stopped at Heathrow Airport to confiscate any documents and data that he might have been holding in relation to the whistleblowing. There was no judicial oversight and no legal protection for the sensitive journalistic information that the security services sought to confiscate.
This amendment is not just an issue that I have cooked up because I do not trust the Government or something that NGOs have asked me to bring forward. It was the judgment of the Court of Appeal in the David Miranda case, where the Master of the Rolls said that the existing Schedule 7 power, on which Schedule 3 is based, is in breach of the European Convention on Human Rights. It was the Court of Appeal’s conclusion that,
“in relation to journalistic material … it is not subject to adequate safeguards against its arbitrary exercise … It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material”.
What have the Government done to rectify this breach of human rights law? Given that the existing Schedule 7 power has already been ruled in breach of human rights by the Court of Appeal, how have the Government chosen to bring another power which replicates the breach in its entirety? In that light, how was the Minister able to put a statement on the Bill that it is in accordance with the Human Rights Act when it is not? We have to amend this provision in some way. The alternative is that we pass a measure that we know has already been declared in breach of the human rights convention and is certain to be declared so again.
Journalists do essential work. They are the lifeblood of any free country, yet they face constant threats across the world for speaking truth to power. In the USA, despite constitutional protection, they are labelled by the President as “enemies of the people”, and have had bomb scares and other threats made by the far right. In Saudi Arabia, and far too many other countries, they face arrest, violence and death. It is against this backdrop that I am grateful to the Minister for tabling a number of amendments to the Bill which seek to protect journalists and their sources from the powers contained within. However, Schedule 7—and by extension the Schedule 3 power—do not protect journalists, and expose their sources to interference by the state.
My amendment gives journalists the right to say no when asked to hand over confidential information. I recognise that this is a sticking plaster for now. The Government can and should bring their own amendment to resolve the issues in the Miranda judgment, and give proper judicial oversight of this kind of confiscation. I hope this is just an oversight, and that the Minister has not yet tabled all her amendments to Schedule 3. While we wait for those to be forthcoming, can the Minister reassure us that we will come back to this at Third Reading?
Amendment 34F builds on the points I have just made. At the moment, the Schedule 3 power at least contains a safeguard so that any statements a detainee makes while detained cannot be used in court. The same protection is not given to information or documents that are confiscated. There should be protection for journalistic material and journalists’ sources, so that they cannot be exposed in court. I look forward to seeing the Minister’s amendments, which would resolve this problem.

Lord Paddick: My Lords, I rise to support the amendments of the noble Baroness, Lady Jones, at least in principle. There is clearly a conundrum here. You have people potentially being detained and questioned at ports, for up to a maximum of six hours. They may be in possession of documents that are genuinely confidential journalistic material—for example, information about journalistic sources—or they may be legal documents, subject to legal privilege. As this amendment suggests, however, to allow someone to refuse to hand over the documents or information on the basis that this is what they contain, would be open to abuse by foreign spies, or people who have adverse intentions towards the United Kingdom. There is a dilemma between protecting legally privileged material and confidential journalistic material, but at the same time—and within the timescales and practicalities of a Schedule 3 or Schedule 7 stop—finding some mechanism that protects those fundamental human rights and enables the Border Force to carry out its job in protecting the United Kingdom.

Lord Hylton: My Lords, these two amendments raise genuine points of concern. As the Bill is written, border guards and other officials are being put in a more privileged position than police forces. Under the Terrorism Act 2000, the police have to apply to a court for judicial approval of such actions, so I am supportive.

Lord Kennedy of Southwark: My Lords, the noble Baroness, Lady Jones, raises important issues with these two amendments, and I am happy to give my support in principle. As the noble Baroness said herself, I am not convinced that these amendments, as written, are correct, though they certainly raise issues the Government should look at and support. All of us here would, I hope, support journalists, and a free and responsible press.
The issues raised by the amendments need looking at; I hope that the Minister will do so when she responds. Perhaps we can find a way forward, possibly at Third Reading, to address the concerns here. It is about getting the balance right between protecting our  country, protecting the rights of journalists and keeping ourselves safe and secure. We need to get those issues right in the Bill. I look forward to the Minister’s response.

Baroness Williams of Trafford: I agree totally with noble Lords that there is a balance to be struck between the freedom of the press and getting material that is not conducive to this country’s well-being. The amendments reflect concerns about how Schedule 3 ports powers apply to journalistic material and sources. The noble Baroness, Lady Jones, spoke passionately about that issue in Committee; I hope to assure her that Schedule 3 includes a number of safeguards to protect confidential material, including confidential journalistic material.
Schedule 3 is a counter-hostile state activity power. With that in mind, it is vital that ports officers are equipped to deal with the means and methods of those engaged in such activity. I spoke in Committee about the very real threat we face from foreign intelligence officers and their agents who actively use the cover of certain professions including journalism, the law and others. That is why Schedule 3 introduces new powers to allow for action to be taken where an article that may include confidential material could be used in connection with a hostile act, presents a threat to life or could lead to significant injury.
Amendment 34E would undermine the ability of ports officers to detect, disrupt and deter hostile actors as it would allow a person simply to refuse a request for documents or information, including sources, where they claim that it consists of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or is subject to legal privilege. That would prohibit the examining officer verifying that the material in question is confidential or journalistic and would require the officer to take the examinee at their word.
I have spoken before about why that would be problematic when faced with trained hostile actors who will seek to exploit any possible loophole in our legislation, yet the concerns raised by the noble Baroness, Lady Jones, are precisely why the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who must be satisfied that certain conditions are met before granting that authorisation. This approach protects the work of legitimate journalists and lawyers and is consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda, to which the noble Baroness referred. In that case, the court said that,
“independent and impartial oversight … is the natural and obvious adequate safeguard”,
in examination cases involving journalistic freedom.
Amendment 34F would extend the statutory bar—which prohibits answers or information given orally by a person during an examination being used in criminal proceedings—to any information or documents given where the material is considered journalistic. Noble Lords will know that the purpose of this important safeguard, as recommended by the noble Lord, Lord Anderson, is to protect an examinee against self-incrimination where they must respond to questioning under compulsion and so do not have a right to  silence. The amendment would extend the statutory bar into territory it was not designed or intended to cover. It could prevent evidence of a hostile act from being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the Investigatory Powers Commissioner. Accepting this amendment would undermine the ability of the police and the CPS to prosecute hostile actors, either those who have used journalistic cover to disguise their criminal activities or those whose activities might be evidenced by confidential material in the hands of a third party.
Although I do not agree with the amendments, for the reasons I have explained, I recognise the force of the noble Baroness’s arguments on the need for strong protections for journalistic material that is not confidential. I will therefore ask my officials to consider if any additional protections may be introduced through the Schedule 3 codes of practice. I can undertake to keep the noble Baroness informed of progress with this work, and of course a revised version of the draft code of practice will need to come back to this House to be approved before those provisions come into force. I am grateful to the noble Baroness for giving the House another opportunity to debate the appropriate safeguards for journalistic and legally privileged material under Schedule 3. In light of my undertaking to do this additional work, I hope she will feel happy to withdraw her amendment.

Baroness Jones of Moulsecoomb: I thank the Minister for her response and I thank the noble Lords who supported my amendment in principle. I was going to say that I withdraw the amendment with discontent, but in fact I am absolutely delighted by the Minister’s answer, so I look forward to Third Reading. Thank you.
Amendment 34E withdrawn.
Amendment 34F not moved.

Amendments 34G to 43

Moved by Baroness Williams of Trafford
34G: Schedule 3, page 44, line 16, at end insert “so far as those interests are also relevant to the interests of national security”
34H: Schedule 3, page 49, line 7, after “Kingdom” insert “so far as those interests are also relevant to the interests of national security”
34J: Schedule 3, page 49, line 23, at end insert “so far as those interests are also relevant to the interests of national security”
34K: Schedule 3, page 49, line 42, at end insert “so far as those interests are also relevant to the interests of national security”
35: Schedule 3, page 55, line 35, at end insert—“( ) A detainee must be informed of the right under this paragraph on first being detained.”
36: Schedule 3, page 55, line 40, at end insert—“( ) A detainee must be informed of the right under this paragraph on first being detained.”
37: Schedule 3, page 57, line 4, leave out sub-paragraphs (1) and (2) and insert—  “(1) This paragraph applies where a detainee exercises the right under paragraph 30 to consult a solicitor.(2) A police officer of at least the rank of superintendent may direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detainee’s choosing.(2A) A direction under this paragraph may be given before or after a detainee’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”
38: Schedule 3, page 57, line 25, leave out sub-paragraphs (5) and (6)
39: Schedule 3, page 60, line 12, leave out “Subject to paragraph 39,”
40: Schedule 3, page 60, line 12, at end insert—“( ) A detainee must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.”
41: Schedule 3, page 60, line 31, leave out sub-paragraphs (1) and (2) and insert—“(1) Sub-paragraph (2) applies where a detainee exercises the right under paragraph 37(6) to consult a solicitor.(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (3), direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detainee’s choosing.(2A) A direction under this paragraph may be given before or after a detainee’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”
42: Schedule 3, page 60, line 39, leave out “(1)” and insert “(2)”
43: Schedule 3, page 73, line 22, at end insert—“( ) A person may be specified in regulations under this paragraph only if the person exercises public functions (whether or not in the United Kingdom).”
Amendments 34G to 43 agreed.

  
Schedule 4: Minor and consequential amendments

Amendment 44

Moved by Baroness Williams of Trafford
44: Schedule 4, page 90, line 2, at end insert—“38A_ In Schedule 14 (exercise of officers’ powers), in paragraph 4 after sub-paragraph (2) insert—“(3) A person may be specified in an order under this paragraph only if the person exercises public functions (whether or not in the United Kingdom).””
Amendment 44 agreed.

  
Clause 26: Commencement

Amendment 45

Moved by Baroness Williams of Trafford
45: Clause 26, page 26, line 3, after “16” insert “, (Persons detained under port and border control powers)”

Baroness Williams of Trafford: My Lords, the House will recall that on the first day on Report, a new clause was added to the Bill to strengthen the rights of persons detained under Schedule 8 to the Terrorism Act 2000 to consult a solicitor in private. Amendment 45 is consequential upon that new clause. The amendment will provide that the new clause will be commenced by regulations, rather than automatically coming into force two months after Royal Assent. This will allow time to update the code of practice under the Terrorism Act 2000 before these provisions are brought into force. I beg to move.
Amendment 45 agreed.

Amendment 46

Moved by Baroness Howe of Idlicote
46: Clause 26, page 26, line 10, at end insert “, subject to subsection (3A).(3A) Before section 19 can come into force, the Secretary of State must revise the Government’s counter-terrorism strategy and any guidance under—(a) section 29(3),(b) section 36(7), and(c) section 38(6),of the Counter-Terrorism and Security Act 2015.(3B) The revisions under subsection (3A) must ensure that—(a) there is a clear and consistent definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism, and(b) the definition of when considerations other than terrorism can be considered relevant to the assessment of an individual who is thought vulnerable to being drawn into terrorism is bounded by the requirement to assess the risk of being drawn into terrorism under sections 26(1) and 36(1) of the Counter-Terrorism and Security Act 2015.”

Baroness Howe of Idlicote: My Lords, in introducing Amendment 46, I would like to put on the record my thanks to the Minister for the very useful meeting that the noble Lord, Lord Morrow, and I had with her at the beginning of the month. As a result of that meeting, I have decided not to re-table one of my Committee stage amendments. However, I think it is important to revisit the concerns I addressed in Committee through my Amendments 89 and 91, hence why I am speaking to Amendment 46 today. The basic problem addressed by my amendment is that the guidance documents that are likely to inform the implementation of the duties set out under Section 36 of the Counter-Terrorism and Security Act 2015, as amended by  Clause 19 of the Bill before us today, uphold an inconsistent approach to the crucial question of whether—and if so, when—considerations regarding non-violent extremism are relevant.
The wording of Section 36 is very clear that it requires local authorities to assess whether people are vulnerable to being drawn into terrorism. Section 36 does not ask for an assessment to be made regarding whether people will be drawn into any other activity and, specifically, no reference is made to non-violent extremism. In this context, there must be a concern that any suggestion in the guidance that these panels should assess people for anything other than the risk of being drawn into terrorism would involve their acting beyond the parent legislation.
At this point, some might say, “So what? If a Section 36 panel assesses and sanctions interventions relating to people who engage in extremism as well as terrorism, is that such a bad thing?” To my mind, it all depends what you mean by “extremism”. If you mean violent extremism, this clearly falls within the parameters of terrorism and Section 36. Clearly, making an intervention at that point is wholly justified. However, extremism is a potentially much wider concept than violent extremism and is very much a subjective reality in the eyes of the beholder. One person’s extremism will be another’s common sense and vice versa.
Part of the genius of the British political tradition over centuries has been its capacity to make room for people with different world views, some of them more peculiar than others. In this context, it is vital that the guidance that informs the application of Section 36, as amended by Clause 19, does not encourage local authorities to stray into a general assessment of extremism in the round, because this clearly overreaches what is mandated by the legislation and because we must jealously guard our commitment to free speech.
In highlighting this concern, I am not arguing that there is an absolute divide between violent and non-violent extremism, such that it is not legitimate to consider non-violent extremism in implementing Section 36. The proper relationship between non-violent extremism and terrorism for the purposes of Section 36 has been set out very clearly by Mr Justice Ouseley in his judgment in the 2017 case of Mr Salman Butt. He says that intervention on the basis of Section 26, and thus clearly by implication Section 36, can be only in response to,
“active opposition to fundamental British values”,
which,
“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.
In other words, non-violent extremism is a relevant consideration only to the extent that it creates a risk that others will be drawn into terrorism. Non-violent extremism that does not sustain this relationship to terrorism is not engaged.
A number of counterarguments have been made in response to my highlighting these concerns. In the first instance, it has been said that the Prevent duty guidance and counterterrorism guidance are not relevant because  the guidance that had been specifically developed for implementing Section 36 is the Channel duty guidance. I accept that the Channel duty guidance has been specifically drafted with Section 36 in mind. I expect that local authorities would turn to this in the first instance. What I do not think stands up to scrutiny, however, is the suggestion that local authorities will not consult other guidance documents. I will not repeat everything I said on this in Committee, but I remind the House that the Channel guidance encourages its readers to look at the Prevent duty strategy and the counterterrorism strategy under the heading “Other Useful Guidance”.
In the second instance, it has been suggested that the Channel duty guidance, the Prevent duty guidance and the counterterrorism strategy all adopt a clear and consistent approach to the relationship between terrorism and non-violent extremism, such that one can be confident that there will be no confusion about when, on the basis of Section 36, it is appropriate for a local authority to intervene. I have acknowledged that parts of these documents are clear on this question. My difficulty is that other parts are far from clear, and this is leading to confusion.
For instance, in the Prevent duty strategy, the glossary definition of extremism does not depend on any necessary connection to terrorism. It says that for the purpose of the strategy, extremism is,
“vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty and mutual respect, and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our Armed Forces, whether in this country or overseas”.
Although there is a reference to calling for the death of members of the Armed Forces, that is not necessary to fulfil this definition of extremism, and so it does not reflect what the law says as set out by Mr Justice Ouseley.
The counterterrorism strategy, meanwhile, provides a definition of terrorism specifically for the Channel programme that is completely beyond Mr Justice Ouseley’s definition of the law. Paragraph 124 of the strategy states:
“Channel is … run in every local authority in England and Wales, and addresses all types of extremism”.
The suggestion that Channel interventions can be made with respect to all types of extremism clearly suggests that this provides a basis for intervention in relation to non-violent extremism where there is no relationship to violent extremism and terrorism.
The Channel duty guidance is also confused. Part 4 makes the necessary connection to terrorism very clear. It states:
“Preventing terrorism will mean challenging extremist and non-violent ideas that are also part of a terrorist ideology”.
In other words, content that the state deems extreme but is itself non-violent must be connected with terrorism in that it must be part of terrorist ideology to be a relevant consideration. However, paragraph 5 then uses a different definition of extremism, in which there is no necessary connection with terrorist ideology. This seems to open the door to anything the state deems extreme without needing to be part of a terrorist ideology. This confusion is further reflected in the   more detailed definition of what extremism is that is provided in paragraph 51, where again we see no necessary connection to terrorism.
The lack of any consistent clarity about when consideration of non-violent extremism is appropriate in discharging Section 36 responsibilities with respect to terrorism is a real problem, because the resulting confusion is impacting on practice, as noted by Mr Justice Ouseley in paragraph 29 of his judgment. Here he is not simply saying that he thinks there is a risk of confusion. He is saying that he is encountering that confusion as people misapply a felt obligation to prevent people being drawn into non-violent extremism. The paragraph says:
“However often that phrase is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.
In a context where the guidance on which public servants depend is so confused about when non-violent extremism can be pursued under Section 26 or Section 36, it would not be appropriate for us to accede to the demands of Clause 19, widening the application of Section 36, without first ensuring that the Channel duty guidance, the Prevent duty guidance and the counterterrorism strategy sustained a clear and consistent definition about when non-violent extremism was a relevant consideration in discharging Section 36 responsibilities. This would not require a complete rewrite of any of the guidance documents. What is needed is a clear statement at the beginning and in a glossary that any reference to extremism in the guidance is relevant only to the discharging of responsibilities in relation to the 2015 terrorism Act when the extremism in question is such that, in the words of Mr Justice Ouseley, it, “risks drawing” others into terrorism. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it.
The Minister mentioned to me that the guidance would have to be updated in any event within 12 months. However, given the serious implications of the confusion that I have highlighted, it would be helpful if that review could be brought forward a little. If that is not possible, a supplementary definition of when non-violent extremism is a relevant consideration under Section 36 and when it is not would be a useful temporary solution. I beg to move.

Lord Morrow: My Lords, I am very pleased to speak in support of Amendment 46. I want also to put on the record my thanks to the Minister for facilitating the meeting with the noble Baroness, Lady Howe, and me.
It is not my intention to repeat what the noble Baroness has said, but I want to say clearly that I agree with all of it. The Minister asked her and me whether  we could think of any examples of confusion resulting from the inconsistent approach set out in guidance as to when non-violent extremism can be addressed in responding to the Section 36 duty, which pertains narrowly to terrorism, and when it cannot. I shall set out at least two examples.
Before I do so, however, I want to say that, even if there were no examples, it would still be important that when a lack of clarity was highlighted we did not wait for a problem before recognising the need to take action. I am a great believer in recognising where there is potential for problems before they make their presence felt and intervening to address the source of the difficulty in question.
Paragraph 129 of Mr Justice Ouseley’s judgment clearly demonstrates that he has already identified a tendency for people to misconstrue the guidance as it relates to the definition of the threshold that has to be crossed for consideration of non-violent extremism to become relevant. He states: “However often that phrase”—that is, preventing people being drawn into non-violent extremism—
“is used, it starts, in my judgment, from a fundamental misreading or misunderstanding of the guidance. The guidance is about the s26 duty; it is therefore about preventing people being drawn into terrorism through non-violent extremism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist does pose such a risk, the guidance applies. It is not at issue that preventing people being drawn into terrorism is a legitimate aim”.
In my judgment, this is no more than sufficient justification for the Government to recognise the importance of intervening in order to bring the requisite clarity. This could be done relatively easily by employing Mr Justice Ouseley’s definition of when non-violent extremism is relevant to discharging responsibilities under the Terrorism Act 2015 and when it is not.
Despite this, I will now turn to two specific examples, starting with the experience of the National Union of Teachers, which has asked:
“How are schools and sixth form colleges expected to incorporate the Prevent strategy into their existing safeguarding policies? The Prevent duty guidance is again lacking in detail on this point. It says schools ‘will need to consider the level of risk to identify the most appropriate referral, which could include Channel or Children’s Social Care, for example’. It also requires these policies to ‘set out clear protocols for ensuring that any visiting speakers—whether invited by staff or by children themselves—are suitable and appropriately supervised’”.
Crucially, however, the NUT then goes on to observe that the guidance,
“does not indicate which acts/behaviours warrant a referral to Channel or Children’s Social Care”.
This clearly illustrates the problem.
The NUT is not saying that it cannot see terrorism, which is fairly easy to identify. Its difficulty pertains to the lack of clarity regarding what else is relevant, and at the heart of that challenge is knowing what non-violent extremism is engaged and what non-violent extremism is not engaged. On the basis of some parts of the guidance, one could think that all non-violent extremism is relevant. On the basis of the legal definition in his judgment, however, Mr Justice Ouseley is very clear that non-violent extremism is relevant only if it is connected to terrorism in the sense that it,
“risks drawing others into terrorism before the guidance applies to it”.
He then, of course, looks at it from the other perspective, saying:
“If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.
These are the tests that should be being applied but, as the noble Baroness, Lady Howe, has demonstrated, the current guidance does not uphold them and does not have a clear and consistent definition of when non-violent extremism is relevant for the purpose of discharging the Section 36 responsibilities and when it is not relevant. Having considered this NUT example, it is also helpful to have regard to the 2016 Joint Committee on Human Rights report on counter- extremism. Again in relation to education, it states, at paragraph 46, that:
“On 21 June 2016, the Times reported that ‘in schools 1,041 children were referred last year to Channel, the de-radicalisation programme; in 2012, the year it was extended nationally, only nine children were referred’. Evidence on the proportionality of such referrals is almost entirely anecdotal at this stage. Yet it is far from clear that it was envisaged that so many children would be referred. Tell MAMA has stated that it has ‘received a number of cases involving schools and where Muslim young people have been interviewed on the back of alleged comments that they have made within the school environment’. They argue that some of these individuals ‘believe that they have been targeted because of their faith’”.
In other words, the JCHR is questioning whether the scale of referrals is appropriate.
If teachers are overreferring, this is not because they are seeing lots of terrorism in our schools. It is almost certainly because they are seeing what they perceive to be non-violent extremism and think that it provides a basis for a referral. Clearly, if non-violent extremism as a whole is in play, it provides a very broad basis for making referrals that would be consistent with these numbers. This misreading is, of course, entirely consistent with Mr Justice Ouseley’s observation that preventing people being drawn into non-violent extremism arises out of,
“a fundamental misreading of the guidance”.
He is very clear that, legally, the relevant Section 26 duty—and we may add by extension the relevant Section 36 duty, since both are confined to terrorism—engages non-violent extremism only to the extent that it can be shown to be connected to terrorism by playing a part in drawing people into it.
When we are confronted by a general tendency for people to misread the guidance, we can safely assume that the guidance is not clear. That is precisely what the noble Baroness, Lady Howe, has shown, by looking at the relevant texts. The Minister told the noble Baroness and me that these concerns could be addressed within 12 months because the guidance documents would be up for review by then. However, given that there is evidence suggesting that non-violent extremism is being applied generally, without regard for the appropriate legal constraints, reviewing the guidance is now a matter of considerable urgency.
It was your Lordships’ House that set the legislative framework providing the foundations for the Prevent and Channel duty guidance when we scrutinised and  passed the 2015 Act. The evidence highlighting that the guidance is not clear and that it is being misread, to allow it to be applied to non-violent extremism not licensed anywhere in the legislation that we signed off, should be a real concern to every Member of your Lordships’ House.
In this context, while I appreciate that in the normal course of events there will be an opportunity to review the guidance documents in 12 months, I am not persuaded that it is appropriate to leave the many public servants who are expected to discharge this duty with guidance that we know is vulnerable to being misread for possibly as long as another 18 months, depending how long the review lasts. Mindful of this, I ask the Minister to take this matter away between now and Third Reading to see whether, mindful of the practical implications arising out of the lack of clarity, it might be possible to bring forward a review.
As the noble Baroness, Lady Howe, said, I do not think there is necessarily a need to rewrite the entire guidance documents. What is required is a clear statement at the start of the documents and in the glossary that says words to the effect of, “Any reference to extremism in this document must be read as engaging only non-violent extremism, to the extent that it is connected to terrorism, in the sense that it can be shown to play a part in drawing people into terrorism. Non-violent extremism which carries no risk of drawing people into terrorism is not subject to the guidance. Once the risk is established that a non-violent extremist poses such a risk, the guidance applies. It is not an issue that preventing people being drawn into terrorism is a legitimate aim”. I believe this would bring much-needed clarity. I look forward with great interest to what the Minister has to say in response.

Lord Stunell: My Lords, I cannot in any way match the forensic and destructive analysis of the present situation provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow. I thank them for that. I think that the Minister has some serious answering to do on those very technical points—the case was argued in much detail.
I want to very briefly make a much broader point. When we make weapons of law in this place, who will wield them in the future? The very compelling point by the noble Baroness, Lady Howe, that one person’s non-violent extremism is somebody else’s common sense, is one that we ought to have very much in our minds. We should regard that as being precious and part of our heritage as citizens of this country.
It is also something that changes over time. I want to confess to the House that, on one reading of history, I am a non-violent extremist. I am supporter of the views of Thomas Helwys, who fled this country in 1605 because of the tract that he published which stated that every man should be free to worship his own God, in his own way, whether Catholic, Jew or Muslim. He very sensibly fled to the Netherlands for four years after publishing that tract. He subsequently returned to this country, was arrested and was imprisoned for life in the Tower of London. That is an example of the fact that fashions change and things change in our own country. They also change geographically. In the  European Union, 10 years ago it was perfectly safe and proper to be a lecturer at George Soros’s university. Now you are an enemy of the state.
Who holds the weapons concerning what is extreme and what is common sense? I hope the Minister will consider that point as well as the forensic and detailed critique provided by the noble Baroness, Lady Howe, and the noble Lord, Lord Morrow.

Baroness Williams of Trafford: My Lords, I thank the noble Baroness, Lady Howe, and the noble Lords, Lord Morrow and Lord Stunell, for their points. All I can say on the back of the point made by the noble Lord, Lord Stunell, is: thank God we do not live in the 17th century.
I start by making it clear that when the Government refer in the various documents mentioned by the noble Baroness to Prevent applying to “all forms of extremism”, that means that Prevent applies to far-right extremism as much as it does to Islamist extremism—and, indeed, to Sikh-related extremism, Northern Ireland-related extremism, et cetera. This is a relatively new change, as the Prevent strategy pre-2011 applied only to Islamist extremism. This was clearly inequitable and not reflective of the threat, so it was changed. What is not meant by that expression is that Prevent should apply to all degrees of extremism. All our guidance has tried to be clear that Prevent is of relevance only where the extremism is such that there is a risk of people being drawn into terrorism. That is how the duties are framed in statute, and the point is made many times throughout the two pieces of statutory guidance: the Prevent duty guidance and the Channel duty guidance. I accept that there are occasions in those documents when the full formulation is not used for the sake of brevity and style. However, we believe that, when read as a whole, and in conjunction with the 2015 Act, the true meaning is clear.
I also emphasise that we have not seen any evidence to suggest that practitioners are misinterpreting the guidance documents to try to apply them to those forms of extremism which do not risk drawing people into terrorism, but I appreciate the example provided by the noble Lord, Lord Morrow, and I would be grateful if he would forward it to me. Certainly, the rigorous assessment within the Channel process ensures that no one is likely to be offered support unless that connection to being drawn into terrorism is there. We must not forget that, in any event, Channel support is entirely voluntary.
All guidance reaches a point where it needs to be updated, and we are committed to doing so when the time is right. Since the Prevent and Channel duties were introduced, there has been much good practice and many case studies which a new version would look to contain. Noble Lords may also be aware that just last week the Court of Appeal heard a case relevant to this matter and the Government eagerly await its judgment, which may well have implications for how a future revision of the guidance is drafted. But we do not know how long it will be before the judgment is handed down and it would be a mistake to attempt to revise the guidance beforehand. In addition,  the drafting process, collecting good practice and going out to public consultation is likely to take several months.
The process of revising guidance is not a quick one if we are to get it right. The Government accept that it will become necessary to do so at some point in the not too distant future, but it would be damaging to what we are trying to achieve with Clause 19 should implementation of that clause be delayed while new guidance is drafted. The almost inevitable outcome, should such an amendment become law, is that the production of new guidance would be rushed so as to limit that damage, resulting in an inferior product, with much-reduced consultation and input from practitioners. Given that the guidance must be approved by Parliament before being issued, your Lordships’ House would be required to debate an inferior product that I would not wish to lay before it.
While I would not wish to commit the Government to a specific timeframe for producing new guidance, I can say that in any event the guidance will need to be reviewed as part of the post-legislative review process that takes place five years after enactment. The fact that the Act in question received Royal Assent in 2015 means that a review and revision of the guidance will happen no later than 2020. When we revise the guidance, we will be sure to take on board the comments that the noble Baroness has made and make it clear exactly what kind of extremism is covered by the Prevent duty and the guidance, and what is not. Prevent is not and never has been any form of thought police, nor has it or been about suppressing dissent. It is of course, as I said earlier, about safeguarding vulnerable people.
I hope I have been able to allay the noble Baroness’s concerns and that she will feel happy to withdraw her amendment.

Baroness Howe of Idlicote: My Lords, I thank the Minister for what she has said. I thought when I was speaking that I got an indication that there would be some action within 12 months, but as she spoke I became rather more worried by the time that everything is going to take.

Baroness Williams of Trafford: I thank the noble Baroness for allowing me to intervene. Twelve months from now brings us virtually into 2020.

Baroness Howe of Idlicote: All right. That is reassuring—to everyone, I hope.
I thank everyone who has taken part in the debate, and I thank the Minister herself for what she has said to us all. I certainly hope that the nature of the problems that we have highlighted during this debate is such that rather more detailed consideration might be given to bringing the whole timetable forward. That would certainly be a great help. The sooner it is done, the better, even if the timetable is really around the 12-month timing. On that basis, I beg leave to withdraw my amendment.
Amendment 46 withdrawn.
House adjourned at 9.22 pm.